EXHIBIT 4.1
EXECUTION COPY
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Depositor
MIDLAND LOAN SERVICES, INC.
Master Servicer
X.X. XXXXXX COMPANY, INC.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
$2,263,536,038
Citigroup Commercial Mortgage Trust 2006-C4
Commercial Mortgage Pass-Through Certificates
Series 2006-C4
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.................................................... 4
SECTION 1.02 General Interpretive Principles.................................. 73
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans..................................... 75
SECTION 2.02 Acceptance of the Trust Fund by Trustee.......................... 78
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of Mortgage
Loans for Document Defects and Breaches of Representations and
Warranties.................................................... 80
SECTION 2.04 Representations and Warranties of Depositor...................... 84
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC I,
REMIC II and Grantor Trust Y by Trustee....................... 86
SECTION 2.06 Issuance of REMIC I Interests.................................... 86
SECTION 2.07 Execution, Authentication and Delivery of REMIC II Certificates.. 86
SECTION 2.08 Execution, Authentication and Delivery of Class Y................ 87
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Serviced Loans............................. 88
SECTION 3.02 Collection of Mortgage Loan Payments............................. 89
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.................................... 91
SECTION 3.04 Collection Account, Interest Reserve Account, Gain-on-Sale
Reserve Account, Additional Interest Account, Distribution
Account and Loan Combination Custodial Accounts............... 95
SECTION 3.05 Permitted Withdrawals from the Collection Account, Interest
Reserve Account, Additional Interest Account, Distribution
Account and Loan Combination Custodial Accounts............... 102
SECTION 3.06 Investment of Funds in the Servicing Accounts, Reserve Accounts,
Collection Account, Interest Reserve Account, Distribution
Account, Loan Combination Custodial Accounts, Gain-on-Sale
Reserve Account, Additional Interest Account and REO Accounts. 113
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage............................................. 115
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SECTION 3.08 Enforcement of Alienation Clauses................................ 118
SECTION 3.09 Realization Upon Defaulted Mortgage Loans; Required Appraisals... 121
SECTION 3.10 Trustee and Custodian to Cooperate; Release of Mortgage Files.... 124
SECTION 3.11 Servicing Compensation........................................... 125
SECTION 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports................................... 131
SECTION 3.13 Annual Statement as to Compliance................................ 134
SECTION 3.14 Reports on Assessment of Compliance with Servicing Criteria;
Registered Public Accounting Firm Attestation Reports......... 135
SECTION 3.15 Access to Certain Information.................................... 137
SECTION 3.16 Title to REO Property; REO Accounts.............................. 140
SECTION 3.17 Management of REO Property....................................... 141
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO Properties........ 144
SECTION 3.19 Additional Obligations of Master Servicer and Special Servicer... 148
SECTION 3.20 Modifications, Waivers, Amendments and Consents.................. 151
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping...................................... 157
SECTION 3.22 Sub-Servicing Agreements......................................... 159
SECTION 3.23 Representations and Warranties of Master Servicer and Special
Servicer...................................................... 162
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty.............. 165
SECTION 3.25 Designation of Controlling Class Representative.................. 165
SECTION 3.26 Servicing of and Certain Matters Regarding a Loan Combination.... 167
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.................................................... 170
SECTION 4.02 Statements to Certificateholders: CMSA Loan Periodic Update
File.......................................................... 178
SECTION 4.03 P&I Advances..................................................... 183
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses;
Allocation of Mortgage Deferred Interest; Allocation of
Appraisal Reduction Amounts; and Allocation of Prepayment
Interest Shortfalls........................................... 187
SECTION 4.05 Calculations..................................................... 188
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates................................................. 190
SECTION 5.02 Registration of Transfer and Exchange of Certificates............ 190
SECTION 5.03 Book-Entry Certificates.......................................... 198
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates................ 199
SECTION 5.05 Persons Deemed Owners............................................ 200
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE CONTROLLING
CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicer and Special Servicer..... 201
SECTION 6.02 Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer.................................. 201
SECTION 6.03 Limitation on Liability of Depositor, Master Servicer and Special
Servicer...................................................... 201
SECTION 6.04 Resignation of Master Servicer and the Special Servicer.......... 203
SECTION 6.05 Rights of Depositor and Trustee in Respect of Master Servicer and
the Special Servicer.......................................... 203
SECTION 6.06 Depositor, Master Servicer and Special Servicer to Cooperate with
Trustee....................................................... 204
SECTION 6.07 Depositor, Special Servicer and Trustee to Cooperate with Master
Servicer...................................................... 204
SECTION 6.08 Depositor, Master Servicer and Trustee to Cooperate with Special
Servicer...................................................... 204
SECTION 6.09 Designation of Special Servicer by the Controlling Class
Certificateholders and Others................................. 204
SECTION 6.10 Master Servicer or Special Servicer as Owner of a Certificate.... 208
SECTION 6.11 The Controlling Class Representative............................. 208
SECTION 6.12 Certain Matters Regarding the ShopKo Portfolio Loan Combination.. 211
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default................................................ 215
SECTION 7.02 Trustee to Act; Appointment of Successor......................... 220
SECTION 7.03 Notification to Certificateholders and Others.................... 221
SECTION 7.04 Waiver of Events of Default...................................... 222
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default............. 222
ARTICLE VIII
THE TRUSTEE
SECTION 8.01 Duties of Trustee................................................ 223
SECTION 8.02 Certain Matters Affecting Trustee................................ 224
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans............................. 225
SECTION 8.04 Trustee May Own Certificates..................................... 226
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee......... 226
SECTION 8.06 Eligibility Requirements for Trustee............................. 226
SECTION 8.07 Resignation and Removal of Trustee............................... 227
SECTION 8.08 Successor Trustee................................................ 228
SECTION 8.09 Merger or Consolidation of Trustee............................... 229
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.................... 229
SECTION 8.11 Appointment of Custodians........................................ 230
SECTION 8.12 Appointment of Authenticating Agents............................. 231
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SECTION 8.13 Access to Certain Information.................................... 232
SECTION 8.14 Appointment of Tax Administrators................................ 232
SECTION 8.15 Representations, Warranties and Covenants of Trustee............. 233
SECTION 8.16 Reports to the Commission........................................ 234
SECTION 8.17 Appointment of a Fiscal Agent.................................... 240
SECTION 8.18 Representations and Warranties of Fiscal Agent................... 241
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans......................................................... 243
SECTION 9.02 Additional Termination Requirements.............................. 246
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration............................................. 247
SECTION 10.02 Grantor Trust Administration..................................... 250
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment........................................................ 253
SECTION 11.02 Recordation of Agreement; Counterparts........................... 255
SECTION 11.03 Limitation on Rights of Certificateholders....................... 255
SECTION 11.04 Governing Law.................................................... 256
SECTION 11.05 Notices.......................................................... 256
SECTION 11.06 Severability of Provisions....................................... 257
SECTION 11.07 Grant of a Security Interest..................................... 257
SECTION 11.08 Successors and Assigns; Beneficiaries............................ 257
SECTION 11.09 Article and Section Headings..................................... 257
SECTION 11.10 Notices to Rating Agencies....................................... 258
SECTION 11.11 Complete Agreement............................................... 259
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
Schedule I Mortgage Loan Schedule
Schedule II Schedule of Exceptions to Mortgage File Delivery
Schedule III Mortgage Loans as to Which the Related Mortgaged Property is
Covered by a Lender's Environmental Insurance Policy
Schedule IV Class A-SB Planned Principal Balance
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class X-0, X-0, X-XX, X-0 and A-1A Certificates
A-2 Form of Class X Certificates
A-3 Form of Class A-M, A-J, B, C and D Certificates
A-4 Form of Class E, F, G and H Certificates
A-5 Form of Class J, K, L, M, N, O and P Certificates
A-6 Form of Class R Certificate
A-7 Form of Class Y Certificates
B Relevant Servicing Criteria
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Calculation of Net Cash Flow
F Form of Distribution Date Statement
G-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
G-2 Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
G-3 Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
G-4 Form of Transferee Certificate for Transfers of Interests in
Rule 144A Global Certificates
G-5 Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
H-1 Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-2 Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
I-1 Form of Transfer Affidavit and Agreement regarding Class R
Certificates
I-2 Form of Transferor Certificate regarding Class R Certificates
J-1 Form of Notice and Acknowledgment
J-2 Form of Acknowledgment of Proposed Special Servicer
K List of Designated Sub-Servicers
L-1 Form of Information Request/Investor Certification for Website
Access from Certificate [Holder] [Owner]
L-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
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M Form of Purchase Option Notice
N Form of Defeasance Certification
O Form of Xxxxxxxx-Xxxxx Certification
P Form of Trustee Certification
Q-1 Form of Master Servicer Certification
Q-2 Form of Special Servicer Certification
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This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of June 1, 2006, among CITIGROUP COMMERCIAL MORTGAGE SECURITIES
INC., as Depositor, MIDLAND LOAN SERVICES, INC., as Master Servicer, X.X. XXXXXX
COMPANY, INC., as Special Servicer, and LASALLE BANK NATIONAL ASSOCIATION, as
Trustee.
PRELIMINARY STATEMENT
The Depositor intends to sell the Certificates, which are to be issued
hereunder in multiple Classes and which in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (exclusive of (i) the related
Excess Servicing Strips and (ii) any collections of Additional Interest on any
such Mortgage Loans that constitute ARD Mortgage Loans after their respective
Anticipated Repayment Dates) and certain other related assets subject to this
Agreement as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC I". The Class R Certificates will
represent, among other things, the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions under federal income tax law. The following
table sets forth the designation and initial REMIC I Principal Balance for each
of the REMIC I Regular Interests. The REMIC I Remittance Rate in effect for any
REMIC I Regular Interest for any Distribution Date shall equal the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date. None of the
REMIC I Regular Interests will be certificated.
Initial REMIC I
Designation Principal Balance
----------- -----------------
A-1 $ 79,951,000
A-2 $152,713,000
A-SB $135,184,000
A-3 $831,310,000
A-1A $385,317,000
A-M $226,353,000
A-J $164,107,000
B $ 50,929,000
C $ 25,465,000
D $ 31,124,000
E $ 22,635,000
F $ 28,294,000
G $ 28,294,000
H $ 25,465,000
J $ 11,318,000
K $ 8,488,000
L $ 8,488,000
M $ 5,659,000
N $ 5,659,000
O $ 5,659,000
P $ 31,124,038
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R Certificates will represent, among other
things, the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions under federal income tax law. The following table irrevocably
sets forth the Class designation and original Class Principal Balance for each
Class of the Regular Certificates. The Pass-Through Rate for any Class of
Regular Certificates for any Distribution Date will be determined in accordance
with the definition of "Pass-Through Rate". For federal income tax purposes,
each Class of the Regular Certificates (exclusive of the Class X Certificates)
and each Class X Component will be designated as a separate "regular interest"
in REMIC II.
Class Original Class
Designation Principal Balance
----------- -----------------
A-1 $ 79,951,000
A-2 $152,713,000
A-SB $135,184,000
A-3 $831,310,000
A-1A $385,317,000
A-M $226,353,000
A-J $164,107,000
B $ 50,929,000
C $ 25,465,000
D $ 31,124,000
E $ 22,635,000
F $ 28,294,000
G $ 28,294,000
H $ 25,465,000
J $ 11,318,000
K $ 8,488,000
L $ 8,488,000
M $ 5,659,000
N $ 5,659,000
O $ 5,659,000
P $ 31,124,038
Class X (1)
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(1) The Class X Certificates will not have a Class Principal Balance and will
not entitle Holders thereof to receive distributions of principal. The
Class X Certificates will have a Class Notional Amount that will equal the
aggregate of the Component Notional Amounts of the Class X Components from
time to time. As more specifically provided herein, interest in respect of
the Class X Certificates will consist of the aggregate amount of interest
accrued on the respective Component Notional Amounts of the Class X
Components from time to time.
The portion of the Trust Fund and consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held from time to
time in the Additional Interest Account that represent Additional Interest,
shall be treated as a grantor trust for federal income tax purposes and
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shall be designated as "Grantor Trust Y". As provided herein, the Trustee shall
take all actions required hereunder to ensure that the portion of the Trust Fund
consisting of the Grantor Trust Y Assets maintains its status as a grantor trust
under federal income tax law and not be treated as part of any REMIC Pool. The
Class Y Certificates shall represent undivided beneficial interests in Grantor
Trust Y as described herein.
There exists one (1) Mortgage Loan (the "ShopKo Portfolio Mortgage
Loan"), evidenced by two (2) promissory notes together, that is, together with
four (4) other promissory notes that will not be part of the Trust Fund (the
respective debt obligation evidenced by each such other promissory note, a
"ShopKo Portfolio Non-Trust Loan"), secured on a collective basis by the same
Mortgage encumbering the property identified on the Mortgage Loan Schedule as
ShopKo Portfolio (the "ShopKo Portfolio Mortgaged Property"). The ShopKo
Portfolio Mortgage Loan has an unpaid principal balance as of the Cut-off Date
of $200,000,000. The ShopKo Portfolio Non-Trust Loans have an aggregate unpaid
principal balance as of the Cut-off Date of $345,655,010. The ShopKo Portfolio
Mortgage Loan and the ShopKo Portfolio Non-Trust Loans, which are all pari passu
in right of payment with each other, collectively constitute the "ShopKo
Portfolio Loan Combination" (which term shall include any group of successor REO
Loans with respect to the ShopKo Portfolio Mortgage Loan and the ShopKo
Portfolio Non-Trust Loans). The relative rights of the respective lenders in
respect of the ShopKo Portfolio Loan Combination are set forth in a co-lender
agreement dated as of May 31, 2006 (as amended, restated, supplemented or
otherwise modified from time to time, the "ShopKo Portfolio Co-Lender
Agreement"), between the holder of the Mortgage Note for the ShopKo Portfolio
Mortgage Loan and the holders of the promissory notes for the ShopKo Portfolio
Non-Trust Loans. The entire ShopKo Portfolio Loan Combination is to be serviced
and administered in accordance with this Agreement.
There exists one (1) Mortgage Loan (the "Wimbledon Place Apartments
Mortgage Loan") that is evidenced by a Mortgage Note designated as Note A and
is, together with one (1) other mortgage loan that will not be part of the Trust
Fund (such other mortgage loan, the "Wimbledon Place Apartments Non-Trust
Loan"), secured on a collective basis by the same Mortgage encumbering the
property identified on the Mortgage Loan Schedule as Wimbledon Place Apartments
(the "Wimbledon Place Apartments Mortgaged Property"). The Wimbledon Place
Apartments Mortgage Loan has an unpaid principal balance as of the Cut-off Date
of $7,750,000. The Wimbledon Place Apartments Non-Trust Loan has an unpaid
principal balance as of the Cut-off Date of $250,000 and is evidenced by a
promissory note designated as Note B. The Wimbledon Place Apartments Mortgage
Loan and the Wimbledon Place Apartments Non-Trust Loan collectively constitute
the "Wimbledon Place Apartments Loan Combination" (which term shall include any
group of successor REO Loans with respect to those two (2) mortgage loans). The
relative rights of the respective lenders in respect of the Wimbledon Place
Apartments Loan Combination are set forth in an intercreditor agreement dated as
of May 24, 2006 (as amended, restated, supplemented or otherwise modified from
time to time, the "Wimbledon Place Apartments Co-Lender Agreement"), between the
holder of the Mortgage Note for the Wimbledon Place Apartments Mortgage Loan and
the holder of the promissory note for the Wimbledon Place Apartments Non-Trust
Loan. The entire Wimbledon Place Apartments Loan Combination is to be serviced
and administered in accordance with this Agreement.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to any Class of Principal
Balance Certificates for any Distribution Date, one-twelfth of the product of
(a) the annual Pass-Through Rate applicable to such Class of Certificates for
such Distribution Date, multiplied by (b) the related Class Principal Balance
outstanding immediately prior to such Distribution Date; and, with respect to
the Class X Certificates for any Distribution Date, the aggregate amount of
Accrued Component Interest for the related Interest Accrual Period for all of
the Class X Components for such Distribution Date. Accrued Certificate Interest
shall be calculated on a 30/360 Basis and, with respect to each Class of Regular
Certificates for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to any Class X Component
for any Distribution Date, one-twelfth of the product of (a) the annual Class X
Strip Rate applicable to such Class X Component for such Distribution Date,
multiplied by (b) the Component Notional Amount of such Class X Component
outstanding immediately prior to such Distribution Date. Accrued Component
Interest shall be calculated on a 30/360 Basis and, with respect to each Class X
Component for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis of
the actual number of days elapsed during any calendar month (or other applicable
accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on
the Mortgage Loan Schedule.
"Additional Interest": With respect to any ARD Mortgage Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Mortgage Loan at the Additional Interest Rate (the payment of which
interest shall, under the terms of such ARD Mortgage Loan, be deferred until the
entire outstanding principal balance of such ARD Mortgage Loan has been paid),
together with all interest, if any, accrued at the related Mortgage Rate plus
the related Additional Interest Rate on such deferred interest. For purposes of
this Agreement, Additional Interest on an ARD Mortgage Loan or any successor REO
Mortgage Loan with respect thereto shall be deemed not to constitute principal
or any portion thereof and shall not be added to the unpaid principal balance or
Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage
Loan,
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notwithstanding that the terms of the related Mortgage Loan documents so permit.
To the extent that any Additional Interest is not paid on a current basis, it
shall be deemed to be deferred interest.
"Additional Interest Account": The segregated account, accounts or
subaccounts created and maintained by the Trustee pursuant to Section 3.04(d)
which shall be entitled "[NAME OF TRUSTEE], as Trustee, in trust for the
registered holders of Citigroup Commercial Mortgage Trust 2006-C4, Commercial
Mortgage Pass-Through Certificates, Series 2006-C4, Additional Interest
Account". The Additional Interest Account shall not be an asset of any REMIC
Pool.
"Additional Interest Rate": With respect to any ARD Mortgage Loan
after its Anticipated Repayment Date, the incremental increase in the per annum
rate at which such ARD Mortgage Loan accrues interest after the Anticipated
Repayment Date (in the absence of defaults) as calculated and as set forth in
the related Mortgage Loan documents.
"Additional Item 1123 Servicer": Any Additional Servicer that meets
the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB with respect
to the Subject Securitization Transaction.
"Additional Servicer": Any Servicer, other than the Master Servicer,
the Special Servicer or the Trustee.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Liquidation Fees and, in accordance with Sections 3.03(d) and 4.03(d),
interest payable to any party hereto on Advances made thereby (to the extent not
offset by Penalty Interest and late payment charges or amounts otherwise payable
to any related Non-Trust Loan Noteholder) and amounts payable to the Special
Servicer in connection with inspections of Mortgaged Properties required
pursuant to the first sentence of Section 3.12(a) (to the extent not otherwise
paid from Penalty Interest and late payment charges or amounts otherwise payable
to any related Non-Trust Loan Noteholder or recovered from the related
Mortgagor), as well as (without duplication) any of the expenses of the Trust
Fund that may be withdrawn (x) pursuant to any of clauses (xi), (xii), (xiii),
(xv), (xviii) and (xix) of Section 3.05(a), out of general collections on the
Mortgage Loans and any REO Properties on deposit in the Collection Account, or
(y) pursuant to any of clauses (x), (xi), (xii), (xiv) and (xv) of Section
3.05(e), out of collections on any Loan Combination or any related REO Property
on deposit in the related Loan Combination Custodial Account, but only to the
extent that such collections would otherwise be transferred to the Collection
Account with respect to the related Combination Mortgage Loan or any successor
REO Mortgage Loan with respect thereto, or (z) pursuant to any of clauses (ii),
(iv), (v) and (vi) of Section 3.05(b) out of general collections on the Mortgage
Loans and any REO Properties on deposit in the Distribution Account; provided
that for purposes of the allocations contemplated by Section 4.04, no such
expense shall be deemed to have been incurred by the Trust Fund until such time
as the payment thereof is actually made from the Collection Account, a Loan
Combination Custodial Account or the Distribution Account, as the case may be.
"Additional Yield Amount": With respect to (i) any Distribution Date,
(ii) any Class of Principal Balance Certificates (other than any Excluded
Class), and (iii) any Yield Maintenance Charge or Prepayment Premium actually
collected during the related Collection Period on a Mortgage Loan or an REO
Mortgage Loan (for purposes of this definition, the "Prepaid Loan") in a Loan
Group with respect to which distributions of principal are being made on such
Class of Principal Balance Certificates on such Distribution Date, the product
of (a) such Yield Maintenance Charge or Prepayment Premium (net of any
Liquidation Fee payable in connection with the receipt thereof), multiplied by
(b) a fraction, which in no event will be greater than one or less than zero,
the numerator of which is equal to
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the positive excess, if any, of (i) the Pass-Through Rate for such Class of
Principal Balance Certificates for such Distribution Date, over (ii) the related
Discount Rate, and the denominator of which is equal to the positive excess, if
any, of (i) the Mortgage Rate for the Prepaid Loan, over (ii) the related
Discount Rate, multiplied by (c) a fraction, the numerator of which is equal to
the amount of principal distributable on such Class of Principal Balance
Certificates on such Distribution Date with respect to the Loan Group that
includes the Prepaid Loan, and the denominator of which is equal to that portion
of the Principal Distribution Amount for such Distribution Date that is
attributable to the Loan Group that includes the Prepaid Loan.
"Adjusted REMIC I Remittance Rate": With respect to any REMIC I
Regular Interest, for any Distribution Date, an annual rate equal to the
Pass-Through Rate in effect for such Distribution Date for the Class of
Principal Balance Certificates as to which such REMIC I Regular Interest is the
Corresponding REMIC I Regular Interest.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse REMIC Event": As defined in Section 10.01(h).
"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.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Annual Assessment Report": As defined in Section 3.14.
"Annual Attestation Report": As defined in Section 3.14.
"Annual Statement of Compliance": As defined in Section 3.13.
"Anticipated Repayment Date": For each ARD Mortgage Loan, the date
specified in the related Mortgage Note after which the per annum rate at which
interest accrues on such ARD Mortgage Loan will increase as specified in the
related Mortgage Note (other than as a result of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected by the Special
Servicer or the Master Servicer, prepared in accordance with 12 CFR Section
225.64 and conducted in accordance with the standards of the American Appraisal
Institute by an Independent Appraiser, which Independent Appraiser shall be
advised to take into account the factors specified in Section 3.09(a), any
available environmental, engineering or other third-party reports, and other
factors that a prudent real estate appraiser would consider. Absent bad faith,
any party hereto may conclusively rely on any Appraisal obtained by or
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delivered to that party in accordance with this Agreement for purposes of
establishing the Appraised Value of a Mortgaged Property.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Mortgage Loan, the excess, if any, of: (a) the sum of, as calculated by the
Master Servicer as of the first Determination Date immediately succeeding the
Master Servicer obtaining knowledge of the subject Mortgage Loan becoming a
Required Appraisal Mortgage Loan, if no new Required Appraisal is required, or
the date on which a Required Appraisal (or letter update or internal valuation,
if applicable) is obtained, if a new Required Appraisal is required, and as of
each Determination Date thereafter so long as the related Mortgage Loan remains
a Required Appraisal Mortgage Loan (without duplication), (i) the Stated
Principal Balance of the subject Required Appraisal Mortgage Loan, (ii) to the
extent not previously advanced by or on behalf of the Master Servicer, the
Trustee or any Fiscal Agent, all unpaid interest accrued on such Required
Appraisal Mortgage Loan through the most recent Due Date prior to such
Determination Date at a per annum rate equal to the related Net Mortgage Rate
(exclusive of any portion thereof that constitutes Additional Interest), (iii)
without duplication, all accrued but unpaid Servicing Fees, and all accrued but
unpaid items that, upon payment, would be Additional Trust Fund Expenses, in
respect of such Required Appraisal Mortgage Loan, (iv) all related unreimbursed
Advances (plus accrued interest thereon) made by or on behalf of the Special
Servicer, the Master Servicer, the Trustee or any Fiscal Agent with respect to
such Required Appraisal Mortgage Loan and (v) all currently due and unpaid real
estate taxes and unfunded improvement reserves and assessments, insurance
premiums, and, if applicable, ground rents in respect of the related Mortgaged
Property; over (b) an amount equal to the sum of (i) the Required Appraisal
Value and (ii) all escrows, reserves and letters of credit held for the purposes
of reserves (provided such letters of credit may be drawn upon for reserve
purposes under the related loan documents) held with respect to such Required
Appraisal Mortgage Loan. If the Special Servicer fails to obtain a Required
Appraisal (or letter update or internal valuation, if applicable) within the
time limit described in Section 3.09(a), and such Required Appraisal (or letter
update or internal valuation, if applicable) is required thereunder, then the
Appraisal Reduction Amount for the related Required Appraisal Mortgage Loan will
equal 25% of the outstanding principal balance of such Required Appraisal
Mortgage Loan to be adjusted upon receipt of a Required Appraisal or letter
update or internal valuation, if applicable.
Notwithstanding the foregoing, the ShopKo Portfolio Loan Combination
will be treated as a single Mortgage Loan for purposes of calculating an
Appraisal Reduction Amount and, to the extent known to the party calculating any
Appraisal Reduction Amount with respect to the ShopKo Portfolio Loan
Combination, amounts described in clause (a) of the prior paragraph shall
include unpaid interest on any delinquency advances with respect to any ShopKo
Portfolio Non-Trust Loan or any successor REO Non-Trust Loan with respect
thereto that is included in a rated commercial mortgage securitization. Any
Appraisal Reduction Amount with respect to the ShopKo Portfolio Loan Combination
will be allocated among the ShopKo Portfolio Mortgage Loan and the various
ShopKo Portfolio Non-Trust Loans (or any successor REO Loans with respect
thereto) on a pro rata basis in accordance with the respective outstanding
principal balances thereof.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal (or letter update
or internal valuation, if applicable) that is contained in the related Servicing
File. Absent bad faith, any party hereto may conclusively rely on any Appraisal
(or letter update or internal valuation, if applicable) obtained by or delivered
to that party in accordance with this Agreement for purposes of establishing the
Appraised Value of a Mortgaged Property.
7
"ARD Mortgage Loan": Any Mortgage Loan that provides that if the
unamortized principal balance thereof is not repaid on its Anticipated Repayment
Date, such Mortgage Loan will accrue Additional Interest at the rate specified
in the related Mortgage Note and the Mortgagor is required to apply excess
monthly cash flow generated by the related Mortgaged Property to the repayment
of the outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Serviced Loan.
"Assumed Periodic Payment": With respect to any Balloon Loan for its
scheduled maturity date (provided that such Balloon Loan has not been paid in
full and no other Liquidation Event has occurred in respect thereof on or before
such scheduled maturity date) and for any Due Date thereafter as of which such
Balloon Loan remains outstanding and part of the Trust Fund, the Periodic
Payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the amount that would have been due in respect of such Balloon
Loan on such Due Date if the related Mortgagor had been required to continue to
pay principal in accordance with the amortization schedule, if any, and pay
interest accrued at the Mortgage Rate, in each case in effect immediately prior
to, and without regard to the occurrence of, its scheduled maturity date. With
respect to any REO Loan, for any Due Date therefor as of which the related REO
Property or any interest therein remains part of the Trust Fund, the Periodic
Payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the amount that would have been due in respect of the
predecessor Mortgage Loan (or, in the case of any REO Non-Trust Loan, the
predecessor Non-Trust Loan) on such Due Date if (x) the related Mortgagor had
been required to continue to pay principal in accordance with the amortization
schedule, if any, and pay interest accrued at the Mortgage Rate, in each case in
effect on the Due Date immediately prior to the predecessor Mortgage Loan
becoming an REO Mortgage Loan or the predecessor Non-Trust Loan becoming an REO
Non-Trust Loan, as the case may be, and (y) the predecessor Mortgage Loan or
Non-Trust Loan, as the case may be, had remained outstanding (or, if the
predecessor Mortgage Loan or Non-Trust Loan, as the case may be, was a Balloon
Loan and such Due Date coincides with or follows what had been its scheduled
maturity date, the Assumed Periodic Payment that would have been deemed due in
respect of the predecessor Mortgage Loan or Non-Trust Loan, as the case may be,
on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant to
Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i) the aggregate
of the amounts on deposit in the Collection Account and the Distribution Account
as of the close of business at the end of the related Collection Period and any
other amounts collected by or on behalf of the Master Servicer as of the close
of business on the last day of such Collection Period and required to be
deposited in the Collection Account, (ii) the aggregate amount of any P&I
Advances made by the Master Servicer, the Trustee or any Fiscal Agent for
distribution on the Certificates on such Distribution Date pursuant to Section
4.03, (iii) to the extent not already included in clause (a)(i), the aggregate
amount transferred from the Pool REO Account (if established) and/or any Loan
Combination Custodial Account to the Collection Account, on or prior to the P&I
Advance Date in such month, pursuant to Section 3.16(c) and/or Section 3.05(e),
as applicable,
8
(iv) the aggregate amount deposited by the Master Servicer in the Collection
Account for such Distribution Date pursuant to Section 3.19 in connection with
Prepayment Interest Shortfalls, and (v) for each Distribution Date occurring in
March, and for the final Distribution Date if the final Distribution Date occurs
in February or, if such year is not a leap year, in January, the aggregate of
the Interest Reserve Amounts in respect of each Interest Reserve Mortgage Loan
and Interest Reserve REO Mortgage Loan deposited into the Distribution Account
pursuant to Section 3.05(c), net of (b) the portion of the amount described in
clause (a) of this definition that represents one or more of the following: (i)
collected Periodic Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any amounts payable or reimbursable to any
Person from (A) the Collection Account pursuant to clauses (ii)-(xvi) and
(xviii)-(xx) of Section 3.05(a) or (B) the Distribution Account pursuant to
clauses (ii)-(vi) of Section 3.05(b), (iii) Prepayment Premiums and Yield
Maintenance Charges, (iv) Additional Interest, (v) with respect to the
Distribution Date occurring in February of each year and in January of each year
that is not a leap year, the Interest Reserve Amounts with respect to the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans to
be withdrawn from the Distribution Account and deposited in the Interest Reserve
Account in respect of such Distribution Date and held for future distribution
pursuant to Section 3.04(e), and (vi) any amounts deposited in the Collection
Account or the Distribution Account in error. The Available Distribution Amount
will not include any amounts required to be distributed pursuant to the terms of
a Co-Lender Agreement or this Agreement to a Non-Trust Loan Noteholder.
"Balloon Loan": Any Mortgage Loan or Non-Trust Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date.
"Balloon Mortgage Loan": Any Mortgage Loan that is a Balloon Loan.
"Balloon Payment": With respect to any Balloon Loan as of any date of
determination, the Periodic Payment payable on the scheduled maturity date of
such Serviced Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"BCRE": Barclays Capital Real Estate Inc. or its successor in
interest.
"BCRE Mortgage Loan Purchase Agreement": That certain mortgage loan
purchase agreement, dated as of June 20, 2006, between the Depositor and
Barclays Capital Real Estate Inc. and relating to the transfer of the BCRE
Mortgage Loan to the Depositor.
"BCRE Mortgage Loan": The Mortgage Loan (or portion thereof)
transferred and assigned to the Depositor pursuant to the BCRE Mortgage Loan
Purchase Agreement and each Qualified Substitute Mortgage Loan delivered in
replacement thereof in accordance with this Agreement and the BCRE Mortgage Loan
Purchase Agreement.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
9
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York or the cities in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is Chicago,
Illinois) or the offices of the Master Servicer (which as of the Closing Date is
Overland Park, Kansas) or the offices of the Special Servicer (which as of the
Closing Date is McLean, Virginia) are located, are authorized or obligated by
law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Citigroup Commercial Mortgage Trust
2006-C4, Commercial Mortgage Pass-Through Certificates, Series 2006-C4, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Deferred Interest": The amount by which interest
distributable with respect to any Class of Principal Balance Certificates is
reduced by the amount of Mortgage Deferred Interest allocable to such Class of
Certificates on any Distribution Date.
"Certificate Factor": With respect to any Class of Certificates (other
than the Class R and Class Y Certificates) as of any date of determination, a
fraction, expressed as a decimal carried to eight places, the numerator of which
is the then-current Class Principal Balance or Class Notional Amount, as
applicable, of such Class of Certificates, and the denominator of which is the
Original Class Principal Balance or Original Class Notional Amount of such Class
of Certificates.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount of the Class
X Certificates.
"Certificate Owner": With respect to a Book-Entry 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 Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal Balance
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) only a Permitted
Transferee shall be the Holder of a Class R Certificate for any purpose hereof
and, (ii) solely for the purposes of giving any consent, approval or waiver
pursuant to this Agreement that relates to any of the Depositor, the Master
Servicer, the Special Servicer or the Trustee in its respective capacity as such
(except with respect to amendments or waivers
10
referred to in Sections 7.04 and 11.01 hereof, any consent, approval or waiver
required or permitted to be made by the Majority Controlling Class
Certificateholder or the Controlling Class Representative and any election,
removal or replacement of the Special Servicer or the Controlling Class
Representative pursuant to Section 6.09 or Section 3.25, as applicable), any
Certificate registered in the name of the Depositor, the Master Servicer, the
Special Servicer or the Trustee, as the case may be, or any Certificate
registered in the name of any of their respective Affiliates, 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, approval or waiver that relates to
it has been obtained. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Master Servicer or the Special
Servicer in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Citigroup": Citigroup Global Markets Realty Corp. or its successor in
interest.
"Citigroup Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of June 20, 2006, between the Depositor and
Citigroup and relating to the transfer of the Citigroup Mortgage Loans to the
Depositor.
"Citigroup Mortgage Loans": Each of the Mortgage Loans (or portions
thereof) transferred and assigned to the Depositor pursuant to the Citigroup
Mortgage Loan Purchase Agreement and each Qualified Substitute Mortgage Loan
delivered in replacement thereof in accordance with this Agreement and the
Citigroup Mortgage Loan Purchase Agreement.
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric, as applicable, class designation.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
11
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the Class A-SB
Certificates for such date set forth on Schedule IV attached hereto.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class B Through P Certificate": Any 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 or Class P Certificate.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
12
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class Notional Amount": With respect to the Class X Certificates, the
Class X Notional Amount.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC II for purposes of the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Principal Balance Certificates outstanding from time to time. As of the
Closing Date, the Class Principal Balance of each Class of Principal Balance
Certificates shall equal the Original Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balances of the respective Classes of the
Principal Balance Certificates shall each be reduced by: (a) the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01; and (b) the amount of any Realized Losses and Additional Trust
Fund Expenses allocated thereto on such Distribution Date pursuant to Section
4.04(a). The Class Principal Balances of the respective Classes of Principal
Balance Certificates will each be increased on any Distribution Date by the
amount of any Certificate Deferred Interest with respect thereto for such
Distribution Date. Distributions in respect of a reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Principal Balance Certificates shall not constitute distributions of principal
and shall not result in reduction of the related Class Principal Balance.
"Class R Certificate": Any one of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing the sole class of "residual interests" in each
of REMIC I and REMIC II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing all of the Class X Components, each of which is
a "regular interest" in REMIC II for purposes of the REMIC Provisions.
13
"Class X Component": Any of the 21 components of the Class X
Certificates, each of which shall constitute a separate "regular interest" in
REMIC II for purposes of the REMIC Provisions. Each Class X Component shall
accrue interest at its Class X Strip Rate in effect from time to time on its
Component Notional Amount outstanding from time to time, which Component
Notional Amount shall equal the REMIC I Principal Balance of such Class X
Component's Corresponding REMIC I Regular Interest. The respective Class X
Components shall be designated as follows: Component X-A-1, Component X-A-2,
Component X-A-SB, Component X-A-3, Component X-A-1A, Component X-A-M, Component
X-A-J, Component X-B, Component X-C, Component X-D, Component X-E, Component
X-F, Component X-G, Component X-H, Component X-J, Component X-K, Component X-L,
Component X-M, Component X-N, Component X-O and Component X-P.
"Class X Notional Amount": With respect to the Class X Certificates,
as of any date of determination, the sum of the then Component Notional Amounts
of all of the Class X Components.
"Class X Strip Rate": With respect to any Class X Component for any
Distribution Date, an annual rate equal to the excess, if any, of the REMIC I
Remittance Rate over the Adjusted REMIC I Remittance Rate with respect to such
Class X Component's Corresponding REMIC I Regular Interest for such Distribution
Date.
"Class Y Certificate": Any one of the Certificates with a "Class Y-I"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a proportionate interest in Grantor Trust Y.
"Class Y Grantor Trust Assets": The assets of Grantor Trust Y.
"Closing Date": June 29, 2006.
"CMSA": The Commercial Mortgage Securities Association or any
successor organization.
"CMSA Advance Recovery Report": A report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Advance Recovery 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"CMSA 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 approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"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 approved by the CMSA for
commercial mortgage securities transactions generally.
14
"CMSA Comparative Financial Status Report": The 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 approved by the CMSA for commercial mortgage securities transactions
generally. 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 June
30, 2006, and (b) annual financial statements beginning with annual financial
statements for the 2006 fiscal year.
"CMSA Delinquent Loan Status Report": The 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 approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Financial File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial 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 approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report": The 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 approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA 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 approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Level Reserve/LOC Report": The report substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Loan Level Reserve/LOC 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.
"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 "Loan Periodic Update 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 approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing
15
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.
"CMSA 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 approved by the CMSA for
commercial mortgage securities transactions and in any event, shall present the
computations made in accordance with the methodology described in such form to
"normalize" the full year net operating income and debt service coverage numbers
used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis": 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 approved
by the CMSA for commercial mortgage-backed securities transactions generally.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
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 approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA 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 approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watchlist": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watchlist/Portfolio Review Guidelines"
available as of the Closing Date on the CMSA Website, or in such other final
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.
"CMSA Website": The website maintained by the CMSA with an address, as
of the Closing Date, of "xxx.xxxx.xxx."
"Code": The Internal Revenue Code of 1986, as amended, and applicable
temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Co-Lender Agreement": With respect to any Loan Combination, the
intercreditor, co-lender or similar agreement in effect between (i) the holder
of the related Combination Mortgage Loan, and (ii) the related Non-Trust Loan
Noteholder(s). The Co-Lender Agreements consist of the ShopKo Portfolio
Co-Lender Agreement and the Wimbledon Place Apartments Co-Lender Agreement.
16
"Collection Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "[NAME OF
MASTER SERVICER], as Master Servicer for [NAME OF TRUSTEE], as Trustee, on
behalf of and in trust for the registered holders of Citigroup Commercial
Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through Certificates, Series
2006-C4".
"Collection Period": With respect to any Distribution Date or P&I
Advance Date, the period that begins on the day immediately following the
Determination Date (or, in the case of the ShopKo Portfolio Mortgage Loan, or
any successor REO Mortgage Loan, the related Due Date) in the calendar month
preceding the month in which such Distribution Date or such P&I Advance Date, as
the case may be, occurs (or, in the case of the initial Distribution Date and
the initial P&I Advance Date, commencing on the day after the related Cut-off
Date) and ending on and including the Determination Date (or, in the case of the
ShopKo Portfolio Mortgage Loan, or any successor REO Mortgage Loan, the related
Due Date) in the month in which such Distribution Date or such P&I Advance Date,
as the case may be, occurs.
"Combination Mortgage Loan": Any Mortgage Loan as to which the related
Mortgage, which encumbers the related Mortgaged Property, also secures one or
more other mortgage loans or promissory note(s), which other mortgage loan(s) or
promissory note(s) will not be included in the Trust Fund. The Shopko Portfolio
Mortgage Loan and the Wimbledon Place Apartments Mortgage Loan are the only
Combination Mortgage Loans.
"Commission": The United States Securities and Exchange Commission or
any successor agency.
"Component Notional Amount": With respect to each Class X Component
and any date of determination, an amount equal to the then REMIC I Principal
Balance of its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate (based on the payment priorities of Sections 4.01(a) and 4.01(b))
outstanding Class of Principal Balance Certificates, that has a Class Principal
Balance that is greater than 25% of the Original Class Principal Balance
thereof; provided, however, that if no Class of Principal Balance Certificates
has a Class Principal Balance that satisfies such requirement, then the
Controlling Class shall be the most subordinate (based on the payment priorities
of Sections 4.01(a) and 4.01(b)) outstanding Class of Principal Balance
Certificates that has a Class Principal Balance greater than zero. For purposes
of determining, and exercising the rights of, the Controlling Class, the Senior
Class A Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25(a).
"Corporate Trust Office": The corporate trust office of the Trustee at
which at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Global Securities and Trust Services--Citigroup
Commercial Mortgage Trust, Series 2006-C4.
"Corrected Loan": Any Serviced Loan that had been a Specially Serviced
Loan but has ceased to be a Specially Serviced Loan in accordance with the
definition of "Specially Serviced Loan"
17
(other than by reason of a Liquidation Event or the related Mortgaged Property
becoming an REO Property).
"Corrected Mortgage Loan": A Mortgage Loan that is a Corrected Loan.
"Corresponding REMIC I Regular Interest": With respect to any Class of
Principal Balance Certificates, the REMIC I Regular Interest that has an
alphabetic or alphanumeric, as applicable, designation that is the same as the
alphabetic or alphanumeric, as the case may be, designation for such Class of
Principal Balance Certificates; and, with respect to any Class X Component, the
REMIC I Regular Interest that has an alphabetic or alphanumeric, as applicable,
designation that, when preceded by "X-", is the same as the alphabetic or
alphanumeric, as the case may be, designation for such Class X Component.
"Crossed Group": With respect to any Mortgage Loan that is a Crossed
Loan, such Mortgage Loan and all other Mortgage Loans that are
cross-collateralized and cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The Debt Service Coverage
Ratio for all remaining related Crossed Loans for the four calendar quarters
immediately preceding the repurchase or substitution is not less than the Debt
Service Coverage Ratio for all such related Crossed Loans, including the
affected Crossed Loan, for the four calendar quarters immediately preceding the
repurchase or substitution; and (ii) the Loan-to-Value Ratio for any remaining
related Crossed Loans determined at the time of repurchase or substitution based
upon an Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller is not greater than the Loan-to-Value Ratio for all such
related Crossed Loans, including the affected Crossed Loan, determined at the
time of repurchase or substitution based upon an Appraisal obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": Individually and collectively, as the context may
require: (i) with respect to each Mortgage Loan that has a Due Date in June
2006, the related Due Date of such Mortgage Loan in June 2006; and (ii) with
respect to any Mortgage Loan that has its first Due Date in July 2006, June 1,
2006.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan, as of the Cut-off Date,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Periodic Payments due on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Serviced Loan, as
of any date of determination, the ratio of (x) the annualized Net Cash Flow
(before payment of any debt service on
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such Serviced Loan) generated by the related Mortgaged Property during the most
recently ended period of not less than six (6) months and not more than twelve
(12) months for which financial statements, if available (whether or not
audited) have been received by or on behalf of the related Mortgage Loan Seller
(prior to the Closing Date) or the Master Servicer or the Special Servicer
(following the Closing Date), to (y) twelve times the amount of the Periodic
Payment in effect for such Serviced Loan (plus, in the case of the Wimbledon
Place Apartments Non-Trust Loan, the Periodic Payment in effect for the
Wimbledon Place Apartments Mortgage Loan) or, if such Serviced Loan is part of
the ShopKo Portfolio Loan Combination, the aggregate of the Periodic Payments
for the entire ShopKo Portfolio Loan Combination, as of such date of
determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that (A) is delinquent
60 days or more in respect to a Periodic Payment (not including the Balloon
Payment) or (B) is delinquent in respect of its Balloon Payment unless the
Master Servicer has, on or prior to the Due Date of such Balloon Payment,
received written evidence from an institutional lender of such lender's binding
commitment to refinance such Mortgage Loan (acceptable to the Special Servicer
and the Controlling Class Representative) within 60 days after the Due Date of
such Balloon Payment (provided that, if such refinancing does not occur during
such time specified in the commitment, the subject Mortgage Loan will
immediately become a Defaulted Mortgage Loan), in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (ii) as to which the
Master Servicer or Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan
on the Mortgage Loan Schedule which permits or requires the related Mortgagor
(or permits the holder of such Mortgage Loan to require the related Mortgagor)
to pledge Defeasance Collateral to such holder in lieu of prepayment. If a
Combination Mortgage Loan is a Defeasance Loan, then any related Non-Trust Loan
may also be a Defeasance Loan.
"Deficient Valuation": With respect to any Mortgage Loan or Non-Trust
Loan, a valuation by a court of competent jurisdiction of the Mortgaged Property
in an amount less than the then outstanding principal balance of such Mortgage
Loan or Non-Trust Loan, as the case may be, which valuation results from a
proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Non-Registered
Certificate that is a Definitive Certificate.
"Depositor": Citigroup Commercial Mortgage Securities Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code
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of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated Sub-Servicer": Any Sub-Servicer identified on Exhibit K
attached hereto.
"Determination Date": The 11th day of each month, or if such 11th day
is not a Business Day, the immediately succeeding Business Day, commencing in
July 2006; provided that, in the case of the ShopKo Portfolio Mortgage Loan or
any successor REO Mortgage Loan with respect thereto, the monthly cut-off for
collections and information shall be the related Due Date in each month.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management of such REO
Property, the holding of such REO Property primarily for sale or lease or the
performance of any construction work thereon, in each case other than through an
Independent Contractor; provided, however, that the Trustee (or the Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the Special
Servicer or any Sub-Servicer on behalf of the Trustee) 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
REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Mortgage Loan for purposes of allocating any Yield Maintenance Charge or
Prepayment Premium received thereon or with respect thereto among the respective
Classes of the Principal Balance Certificates (other than any Excluded Class
thereof), the "Discount Rate" shall be determined as specified in the related
loan documents for the purposes of calculating the subject Yield Maintenance
Charge or Prepayment Premium.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel (which shall not be an expense of the Trustee) that the holding of an
Ownership Interest in a Class R Certificate by such Person may cause the Trust
Fund or any Person having an Ownership Interest in any Class of Certificates,
other than such Person, to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class R Certificate to such Person. The terms "United
States," "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates for any Distribution Date, the Accrued Certificate Interest
in respect of such Class of Certificates for such
20
Distribution Date, reduced (to not less than zero) by the sum of: (i) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Regular Certificates in accordance with Section
4.04(e); and (ii) except in the case of a Class of Class X Certificates, the
portion of any Mortgage Deferred Interest allocated to such Class of Regular
Certificates on such Distribution Date in accordance with Section 4.04(c).
"Distributable Component Interest": With respect to any Class X
Component for any Distribution Date, the Accrued Component Interest in respect
of such Distribution Date, reduced (to not less than zero) by the product of (a)
the entire portion of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that was allocated to the Class X Certificates in accordance
with Section 4.04(e), multiplied by (b) a fraction, the numerator of which is
the amount of Accrued Component Interest in respect of such Class X Component
for such Distribution Date, and the denominator of which is the aggregate amount
of Accrued Component Interest in respect of all the Class X Components for such
Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Trustee on behalf of the Certificateholders (exclusive of the
Holders of the Class Y Certificates) pursuant to Section 3.04(b) which shall be
entitled "[NAME OF TRUSTEE], as Trustee, in trust for the registered holders of
Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through
Certificates, Series 2006-C4."
"Distribution Date": With respect to any Determination Date, the
fourth Business Day following such Determination Date.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Serviced Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Periodic Payment on such Serviced Loan is scheduled to be
first due; (ii) any Serviced Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Periodic Payment on
such Serviced Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Serviced Loan had been scheduled to be first
due.
"XXXXX": The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, and (A) with respect to
deposits held for 30 days or more in such account, the long-term deposit or
unsecured debt obligations of which are rated at least "Aa3" by Moody's (if then
rated by Moody's), "AA-" by Fitch and "AA-" by S&P (or, with respect to any such
rating agency, such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates or
any Non-Trust Loan Securities, as evidenced in writing by the applicable rating
agency), at any time such funds are on deposit therein, or (B) with respect to
deposits held for less than 30 days in such account, the short-term deposits of
which are rated at least "P-1" by Moody's (if then rated by Moody's), "F-1" by
Fitch and "A-1" by S&P (or, with respect to any such rating agency, such lower
rating as will not result in qualification, downgrading or withdrawal of the
21
ratings then assigned to the Certificates or any Non-Trust Loan Securities, as
evidenced in writing by the applicable rating agency), at any time such funds
are on deposit therein, (ii) an account or accounts maintained with PNC so long
as PNC (X) has a long-term unsecured debt rating of at least "A" and a
short-term rating of at least "F-1" from Fitch, (Y) has a long-term unsecured
debt rating of at least "A1" and a short-term rating of at least "P-1" from
Moody's, and (Z) has a long-term unsecured debt rating of at least "A" and a
short-term rating of at least "A-1" from S&P, or (iii) 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 regarding fiduciary funds on deposit therein substantially similar
to 12 CFR Section 9.10(b), having in either case a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal or
state authority, or the use of such account would not, in and of itself, cause a
qualification, downgrading or withdrawal of the then-current rating assigned to
any Class of Certificates or class of Non-Trust Loan Securities, as confirmed in
writing by each applicable rating agency; provided that the ratings of S&P shall
not be applicable except with respect to an account that contains funds related
to a Non-Trust Loan (or any successor REO Non-Trust Loan with respect thereto)
that backs any Non-Trust Loan Securities rated by S & P; and provided, further,
that no rating confirmation need be obtained with respect to any Non-Trust Loan
Securities in connection with establishing whether any account is an Eligible
Account unless such account contains funds related to a Non-Trust Loan (or any
successor REO Non-Trust Loan) that backs such Non-Trust Loan Securities.
"Enhancement/Support Provider": Any enhancement or support provider
contemplated by Item 1114(b) or Item 1115 of Regulation AB with respect to the
Trust Fund or any one or more Classes of Certificates.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-05 or, with the consent of the Controlling Class Representative, a
review conducted in accordance with the All Appropriate Inquiries final rule
issued by the United States Environmental Protection Agency on November 1, 2005
(40 C.F.R. Part 312), or any successor to either.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Servicing Strip": With respect to any Mortgage Loan or REO
Mortgage Loan, the portion of the related Master Servicing Fee (which portion
shall not include that portion payable to any Sub-Servicer party to a
Sub-Servicing Agreement dated the date hereof) that accrues at the related
Excess Servicing Strip Rate in effect from time to time, subject to reduction by
the Trustee in accordance with Section 3.11(a).
"Excess Servicing Strip Rate": With respect to any Mortgage Loan or
REO Mortgage Loan, subject to reduction by the Trustee in accordance with
Section 3.11(a), a rate per annum equal to the excess, if any, of (A) the
related Master Servicing Fee Rate over (B) the sum of (1) 0.01% (1.0 basis
22
point) per annum plus (2) the annual sub-servicing fee rate for any related
third-party Sub-Servicer of such Mortgage Loan or REO Mortgage Loan, as the case
may be, on behalf of the Master Servicer.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Reportable Event": With respect to (a) the Trustee or,
if and to the extent specifically applicable thereto or to its duties on behalf
of the Trustee, any Servicing Representative of the Trustee or any Trustee
Appointee, any Trustee Reportable Event, (b) the Master Servicer or, if and to
the extent specifically applicable thereto or to its duties on behalf of the
Master Servicer, any Servicing Representative of the Master Servicer, any Master
Servicer Reportable Event, and (c) the Special Servicer or, if and to the extent
specifically applicable thereto or to its duties on behalf of the Special
Servicer, any Servicing Representative of the Special Servicer, any Special
Servicer Reportable Event.
"Exchange Act Reporting Year": Each of (a) the Trust's fiscal year
2006, and (b) any subsequent fiscal year of the Trust, but only if as of the
beginning of such subsequent fiscal year of the Trust, the Registered
Certificates are held in the aggregate by at least 300 holders (which may
consist of (i) in the case of Registered Certificates held in definitive form,
direct Holders of such Definitive Certificates, and/or (ii) in the case of
Registered Certificates held in book-entry form through the Depository,
Depository Participants having accounts with the Depository).
"Exchange Act Reports": As defined in Section 8.16(a).
"Excluded Class": Any Class of Principal Balance Certificates other
than the Class A-1 Certificates, Class A-2 Certificates, Class A-SB
Certificates, Class A-3 Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates and Class H Certificates.
"Exemption": Department of Labor Prohibited Transaction Exemption
("PTE") 91-23, as amended from time to time, or any successor thereto.
"Exemption-Favored Party": Any of (i) Citigroup Global Markets Inc.,
(ii) any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Citigroup Global Markets
Inc., and (iii) any member of any underwriting syndicate or selling group of
which any Person described in clauses (i) and/or (ii) is a manager or co-manager
with respect to a Class of Investment Grade Certificates.
"FASB 140": The Financial Accounting Standards Board's Statement No.
140, entitled "Accounting for Transfers and Servicing of Financial Assets and
Extinguishment of Liabilities", issued in September 2002.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased or
replaced by any of the Mortgage Loan Sellers, pursuant to the related Mortgage
Loan Purchase Agreement, by a related Non-Trust Loan Noteholder pursuant to the
23
related Co-Lender Agreement, or by the Master Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder pursuant to Section 9.01 or
that was acquired by the Certificateholders (exclusive of the Class R
Certificateholders) in exchange for their Certificates pursuant to Section 9.01)
that there has been a recovery of all Insurance Proceeds, Liquidation Proceeds,
REO Revenues and other payments or recoveries that the Special Servicer has
determined, in accordance with the Servicing Standard, will be ultimately
recoverable.
"Fiscal Agent": Any fiscal agent appointed as provided in Section
8.17.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
Rating Agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of Fitch, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": Exchange Act Form 8-K, as and to the extent that such form
is applicable for an asset-backed issuer to satisfy its reporting requirements
under the Exchange Act, and the rules and regulations promulgated thereunder,
including for purposes of filing current reports under Section 13 or 15(d) of
the Exchange Act, filed pursuant to Rule 13a-11 or Rule 15d-11, and for reports
of nonpublic information required to be disclosed by Regulation FD (17 C.F.R.
243.100 and 243.101). For purposes of this Agreement, "Form 8-K" shall be deemed
to include any successor or equivalent Exchange Act form adopted by the
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 8-K Required Information": Any and all information required
pursuant to the Exchange Act and/or the rules and regulations promulgated
thereunder to be reported by an asset-backed issuer under Form 8-K.
"Form 10-D": Exchange Act Form 10-D, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing distribution reports under Section
13 or 15(d) of the Exchange Act, filed pursuant to Rule 13a-17 or Rule 15d-17.
For purposes of this Agreement, "Form 10-D" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-D Distribution Report": A distribution report on Form 10-D.
"Form 10-D Required Information": Any and all information required
pursuant to the Exchange Act and/or the rules and regulations promulgated
thereunder to be reported by an asset-backed issuer under Form 10-D.
"Form 10-K": Exchange Act Form 10-K, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing annual reports pursuant to Section
13 or 15(d) of the Exchange Act for which no other form is prescribed, as well
as for
24
filing transition reports pursuant to Section 13 or 15(d) of the Exchange Act.
For purposes of this Agreement, "Form 10-K" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
"Form 10-K Required Information": Any and all information required
pursuant to the Exchange Act and/or the rules and regulations promulgated
thereunder to be reported by an asset-backed issuer under Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Specially Serviced
Mortgage Loan or REO Property, the excess, if any, of (i) any Liquidation
Proceeds with respect to the subject Mortgage Loan or REO Property, as the case
may be (net of any related Liquidation Expenses and, in the case of any
Combination Mortgage Loan or the related REO Property, further net of any
portion of such Liquidation Proceeds payable to the related Non-Trust Loan
Noteholder(s)), over (ii) the Purchase Price for such Mortgage Loan or the
related REO Mortgage Loan, as the case may be, on the date on which such
Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts or subaccount of the Distribution Account created and maintained by the
Trustee pursuant to Section 3.04(f) on behalf of the Certificateholders, which
shall be entitled "[NAME OF TRUSTEE], as Trustee, in trust for the registered
holders of Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4." Any such account shall be an
Eligible Account or a subaccount of an Eligible Account.
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, either the related Rule 144A Global Certificate or
the Regulation S Global Certificate.
"Grantor Trust": A "grantor trust" within the meaning of the Grantor
Trust Provisions.
"Grantor Trust Y": The portion of the Trust Fund consisting of (i) any
Additional Interest with respect to the ARD Mortgage Loans after their
respective Anticipated Repayment Dates and (ii) amounts held from time to time
in the Additional Interest Account that represent Additional Interest, intended
to be treated as a "grantor trust" within the meaning of the Grantor Trust
Provisions.
"Grantor Trust Provisions": Subpart E of Part I of subchapter J of the
Code and Treasury regulation section 301.7701-4(c).
"Ground Lease": With respect to any Serviced Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the Mortgage
Loan Schedule as belonging to Loan Group No. 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the Mortgage
Loan Schedule as belonging to Loan Group No. 2.
25
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling Class
Representative (and, with respect to any Loan Combination, the related Non-Trust
Loan Noteholder(s)), the Trustee and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Controlling Class Representative (or, with
respect to any Loan Combination, the related Non-Trust Loan Noteholder(s)), the
Trustee or any Affiliate thereof, and (iii) is not connected with the Depositor,
the Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the
Controlling Class Representative (or, with respect to any Loan Combination, the
related Non-Trust Loan Noteholder(s)), the Trustee or any Affiliate thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Controlling Class Representative (or, with
respect to any Loan Combination, the related Non-Trust Loan Noteholder(s)), the
Trustee or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the
Controlling Class Representative (or, with respect to any Loan Combination, the
related Non-Trust Loan Noteholder(s)), the Trustee or such Affiliate thereof, as
the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five (5) years' experience in the subject property type and
market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to a REMIC Pool within the meaning of Section 856(d)(3)
of the Code if such REMIC Pool were a real estate investment trust (except that
the ownership test set forth in that Section shall be considered to be met by
any Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee and the Master Servicer), so long as such REMIC Pool does not receive or
derive any income from such Person; provided that the relationship between such
Person and such REMIC Pool is at arm's length, all within the meaning of
Treasury regulations section 1.856-4(b)(5), or any other Person upon receipt by
the Trustee of an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, to the effect
that the taking of any action in respect of any 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 REO
Property to cease to
26
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Form 8-K Current Reports": As defined in Section 8.16.
"Initial Purchaser": Citigroup Global Markets Inc. or its successor in
interest.
"Institutional Accredited Investor" or "IAI": An "accredited investor"
as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Serviced Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Serviced Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property, released to the Mortgagor, or any tenants or ground lessors, as the
case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to each Class of Regular
Certificates, each Class X Component and each REMIC I Regular Interest, for any
Distribution Date, the calendar month immediately preceding the calendar month
in which such Distribution Date occurs. Notwithstanding the foregoing, each
Interest Accrual Period is deemed to consist of 30 days for purposes of
calculating interest on the Regular Certificates, the Class X Components and the
REMIC I Regular Interests.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) on behalf of the
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee, on
behalf of and in trust for the registered holders of Citigroup Commercial
Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through Certificates, Series
2006-C4."
"Interest Reserve Amount": With respect to each Interest Reserve
Mortgage Loan and Interest Reserve REO Mortgage Loan for each Distribution Date
that occurs in February of each year and in January of each year that is not a
leap year, an amount equal to one (1) day's interest at the related Net Mortgage
Rate on the related Stated Principal Balance as of the Due Date in the month in
which such Distribution Date occurs (but prior to the application of any amounts
owed on such Due Date), to the extent a Periodic Payment is collected in respect
thereof as of the Determination Date immediately preceding such Distribution
Date or a P&I Advance is made in respect thereof for such Due Date as of such
Distribution Date.
"Interest Reserve Mortgage Loan": Each Mortgage Loan that is an
Actual/360 Mortgage Loan.
"Interest Reserve REO Mortgage Loan": An REO Mortgage Loan that
relates to an Interest Reserve Mortgage Loan.
27
"Interested Person": The Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Non-Trust Loan Noteholder (but only
with respect to the related Combination Mortgage Loan), any Independent
Contractor hired by the Special Servicer, any Holder of a Certificate or any
Affiliate of any such Person.
"Internet Website": The Internet Websites maintained by the Trustee
and, if applicable, the Master Servicer and/or the Special Servicer, which in
the case of the Trustee is initially located at "xxx.xxxxxxxx.xxx" or such other
address as provided by the Trustee to the parties hereto from time to time and,
in the case of the Master Servicer and/or the Special Servicer, shall be located
at such address provided by such person to the parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating categories
by at least one Rating Agency.
"IRS": The Internal Revenue Service or any successor agency.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"LaSalle": LaSalle Bank National Association or its successor in
interest.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Periodic Payment (other than a Balloon Payment) or an Assumed Periodic Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, and not previously recovered. With respect to any REO
Mortgage Loan, all amounts received in connection with the related REO Property
during any Collection Period, whether as Insurance Proceeds, Liquidation
Proceeds, REO Revenues or otherwise, which represent late collections of the
principal and/or interest portions of a Periodic Payment (other than a Balloon
Payment) or an Assumed Periodic Payment in respect of the predecessor Mortgage
Loan or of an Assumed Periodic Payment in respect of such REO Mortgage Loan due
or deemed due on a Due Date in a previous Collection Period and not previously
recovered.
"Litigation Control": As defined in Section 3.19(e).
"Liquidation Event": With respect to any Mortgage Loan or Non-Trust
Loan, any of the following events: (i) such Mortgage Loan or Non-Trust Loan is
paid in full; (ii) a Final Recovery Determination is made with respect to such
Mortgage Loan or Non-Trust Loan; (iii) in the case of a Mortgage Loan, such
Mortgage Loan is (A) repurchased or replaced by a Mortgage Loan Seller pursuant
to the applicable Mortgage Loan Purchase Agreement, (B) purchased by the Master
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, or acquired by the Certificateholders (exclusive of the Class
R Certificateholders) in exchange for their Certificates, in each case pursuant
to Section 9.01, or (C) purchased by the Majority Controlling Class
Certificateholder, the Special Servicer or any assignee of the foregoing
pursuant to Section 3.18; (iv) in the case of a Mortgage Loan that is a part of
the Loan Combination, such Mortgage Loan is purchased by a related Non-Trust
Loan Noteholder pursuant to the related Co-Lender Agreement and/or, in the case
of the ShopKo Portfolio
28
Mortgage Loan, pursuant to Section 3.18; or (v) such Mortgage Loan or Non-Trust
Loan is purchased by any related mezzanine lender pursuant to any applicable
intercreditor, co-lender or similar agreement. With respect to any REO Property
(and the related REO Loan(s)), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; (ii) such REO Property
is purchased by the Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder pursuant to Section 9.01; or (iii) such REO
Property is sold pursuant to Section 3.18.
"Liquidation Fee": With respect to each Specially Serviced Loan and
each REO Loan, the fee payable to the Special Servicer out of certain related
recoveries pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate": 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or other
collateral constituting security for a defaulted Mortgage Loan or Non-Trust
Loan, through trustee's sale, foreclosure sale, REO Disposition or otherwise
(which does not include voluntary Principal Prepayments), exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Controlling Class Certificateholder, the Special Servicer or any
assignee thereof pursuant to Section 3.18; (v) the repurchase or replacement of
a Mortgage Loan by a Mortgage Loan Seller pursuant to the applicable Mortgage
Loan Purchase Agreement; (vi) the purchase of a Mortgage Loan or REO Property by
the Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, or the acquisition of a Mortgage Loan or REO Property by all
the Certificateholders (other than the Class R Certificateholders) in exchange
for their Certificates, in each case pursuant to Section 9.01; (vii) the
purchase of a Mortgage Loan that is part of a Loan Combination by a related
Non-Trust Loan Noteholder pursuant to a related Co-Lender Agreement and/or, in
the case of the ShopKo Portfolio Mortgage Loan, pursuant to Section 3.18; and
(viii) the purchase of a Mortgage Loan or Non-Trust Loan by a mezzanine lender
pursuant to any applicable intercreditor, co-lender or similar agreement.
"Loan Combination": The ShopKo Portfolio Loan Combination or the
Wimbledon Place Apartments Loan Combination, as applicable.
"Loan Combination Controlling Party": With respect to the ShopKo
Portfolio Loan Combination, the ShopKo Portfolio Controlling Party; and with
respect to the Wimbledon Place Apartments Loan Combination, the Controlling
Class Representative.
"Loan Combination Custodial Account": With respect to any Loan
Combination, the separate account (which may be a sub-account of the Collection
Account) created and maintained by the Master Servicer pursuant to Section
3.04(f) and held on behalf of the Certificateholders and the related Non-Trust
Loan Noteholder(s), which shall be entitled substantially as follows: "[NAME OF
MASTER SERVICER], as Master Servicer for [NAME OF TRUSTEE], as Trustee, on
behalf of and in trust for the registered holders of Citigroup Commercial
Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through Certificates, Series
2006-C4, and [NAME(S) OF THE RELATED NON-TRUST LOAN
29
NOTEHOLDER(S)], as their interests may appear". Each Loan Combination Custodial
Account shall be an Eligible Account or a sub-account of an Eligible Account.
"Loan Combination Mortgaged Property": The Mortgaged Property securing
a Loan Combination. The Mortgaged Properties consist of the ShopKo Portfolio
Mortgaged Property and the Wimbledon Place Apartments Mortgaged Property.
"Loan Combination REO Account": With respect to any Loan Combination,
a segregated account or accounts created and maintained by the Special Servicer
pursuant to Section 3.16 on behalf of the Trustee, in trust for the
Certificateholders, and the related Non-Trust Loan Noteholder(s), which shall be
entitled substantially as follows: "[NAME OF SPECIAL SERVICER], as Special
Servicer for [NAME OF TRUSTEE], as Trustee in trust for registered holders of
Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through
Certificates, Series 2006-C4, and [NAME(S) OF THE RELATED NON-TRUST LOAN
NOTEHOLDER(S)], as their interests may appear".
"Loan Combination REO Property": With respect to each Loan
Combination, the related Loan Combination Mortgaged Property if such Mortgaged
Property is acquired on behalf and in the name of the Trust Fund, for the
benefit of the Certificateholders, and the related Non-Trust Loan Noteholder(s),
as their interests may appear, through foreclosure, acceptance of a deed-in-lieu
of foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of such Loan Combination.
"Loan Group": Either Loan Group No. 1 or Loan Group No. 2, as
applicable.
"Loan Group No. 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Mortgage Loans with respect
thereto.
"Loan Group No. 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the related Available Distribution
Amount attributable to Loan Group No. 1.
"Loan Group No. 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the related Principal Distribution
Amount attributable to Loan Group No. 1.
"Loan Group No. 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Mortgage Loans with respect
thereto.
"Loan Group No. 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the related Available Distribution
Amount attributable to Loan Group No. 2.
"Loan Group No. 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the related Principal Distribution
Amount attributable to Loan Group No. 2.
"Loan-to-Value Ratio": With respect to any Serviced Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then-current principal amount of such Serviced Loan (plus, in the
case of the Wimbledon Place Apartments Non-Trust Loan, the current principal
amount of the Wimbledon Place Apartments Mortgage Loan or, if such Serviced
30
Loan is part of the ShopKo Portfolio Loan Combination, the then-current
principal amount of the ShopKo Portfolio Loan Combination), and the denominator
of which is the Appraised Value of the related Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that prohibits the
Mortgagor from prepaying such Serviced Loan until a date specified in such
Mortgage Note, the period from the Closing Date until such specified date.
"Majority Controlling Class Certificateholder": As of any date of
determination, any single Holder (or, in the case of a Class of Book-Entry
Certificates, Certificate Owner) of Certificates (other than any Holder (or, in
the case of a Class of Book-Entry Certificates, Certificate Owner) that is an
Affiliate of the Depositor or a Mortgage Loan Seller) entitled to greater than
50% of the Voting Rights allocated to the Controlling Class; provided, however,
that, if there is no single Holder (or, in the case of a Class of Book-Entry
Certificates, Certificate Owner) of Certificates entitled to greater than 50% of
the Voting Rights allocated to such Class, then the Majority Controlling Class
Certificateholder shall be the single Holder (or, in the case of a Class of
Book-Entry Certificates, Certificate Owner) of Certificates with the largest
percentage of Voting Rights allocated to such Class. With respect to determining
the Majority Controlling Class Certificateholder, the Senior Class A
Certificates shall be deemed to be a single Class of Certificates, with the
applicable Voting Rights allocated among the Holders (or, in the case of a Class
of Book-Entry Certificates, Certificate Owners) of such Certificates in
proportion to the respective Certificate Principal Balances of such Certificates
as of such date of determination.
"Master Servicer": Midland Loan Services, Inc., its successor in
interest or any successor master servicer appointed as herein provided
(including the Trustee as successor pursuant to Section 7.02).
"Master Servicer Reportable Event": Any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for example,
a servicing agreement with a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, but only if the Master Servicer or any Servicing
Representative of the Master Servicer is a party to such agreement or has
entered into such agreement on behalf of the Trust;
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the Master
Servicer or any Servicing Representative of the Master Servicer is a party
to such agreement or has entered into such agreement on behalf of the
Trust;
(iii) the appointment of a receiver, fiscal agent or similar officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy Code or
in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a court
or governmental authority, but only if the subject Material Debtor is (A)
the Master Servicer, (B) any Servicing Representative of the Master
31
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Performing
Mortgage Loan;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Mortgage Loan;
(v) any resignation, removal, replacement or substitution of (A) the
Master Servicer or (B) any Servicing Representative of the Master Servicer
that constitutes a Servicer contemplated by Item 1108(a)(2) of Regulation
AB;
(vi) any appointment of (A) a new Master Servicer or (B) any new
Servicing Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(2) of Regulation AB;
(vii) any nonpublic disclosure, by the Master Servicer or any
Servicing Representative of the Master Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required pursuant
to this Agreement) that is required to be disclosed by Regulation FD (17
C.F.R. 243.100 through 243.103);
(viii) any other information of importance to Certificateholders
(determined by the Master Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the Master
Servicer has determined, in accordance with the Servicing Standard, could
have an adverse effect on payments to any Class of Certificateholders, and
(C) is directly related to a Performing Mortgage Loan;
(ix) the commencement or termination of, or any material developments
regarding, any legal proceedings pending against any Material Litigant, or
of which any property of a Material Litigant is the subject, or any threat
by a governmental authority to bring any such legal proceedings, that are
material to Certificateholders, but only if the Master Servicer is
controlling the subject litigation or if the subject Material Litigant is
(A) the Master Servicer, (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Performing
Mortgage Loan;
(x) the receipt by or on behalf of the Master Servicer or any
Servicing Representative of the Master Servicer of any updated financial
statements, balance sheets, rent rolls or other financial information
regarding a Significant Obligor with respect to a Performing Mortgage Loan;
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement, whether the Master Servicer has become an affiliate (as defined
in Rule 405 of the Securities Act) of any of (A) the Trust, (B) the
Depositor, (C) a Mortgage Loan Seller, (D) the Trustee, (E) the Special
Servicer, (F) any Servicing Representative of the Master Servicer that
constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation AB or
(G) any Significant Obligor;
32
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding required to be disclosed by Item 1119(b) of Regulation AB
between BCRE, PNC or the Trust, on the one hand, and the Master Servicer or
any Servicing Representative of the Master Servicer, on the other hand; and
(xiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans required to be disclosed
by Item 1119(c) of Regulation AB between BCRE, PNC or the Trust, on the one
hand, and the Master Servicer or any Servicing Representative of the Master
Servicer, on the other hand.
"Master Servicing Fee": With respect to each Mortgage Loan (and any
REO Mortgage Loan with respect thereto), the fee payable to the Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to: (a) each Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), the percentage set
forth under the column "Master Servicing Fee Rate" on the Mortgage Loan
Schedule; (b) each ShopKo Portfolio Non-Trust Loan (or any successor REO
Non-Trust Loan with respect thereto), 0.02% per annum; and (c) the Wimbledon
Place Apartments Non-Trust Loan, 0.0% per annum (or, during any Wimbledon Place
Apartments Material Default, such other rate as is provided in the Wimbledon
Place Apartments Co-Lender Agreement).
"Material Debtor": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
(iii) each of the parties to this Agreement;
(iv) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB with respect to the
Subject Securitization Transaction;
(v) any Significant Obligor;
(vi) any Enhancement/Support Provider; and
(vii) any other material party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
"Material Litigant": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
(iii) each of the parties to this Agreement;
(iv) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB with respect to the
Subject Securitization Transaction;
33
(v) any originator of Trust Mortgage Loans contemplated by Item
1110(b) of Regulation AB; and
(vi) any other party contemplated by Item 1100(d)(1) of Regulation AB
relating to the Subject Securitization Transaction.
"Midland": Midland Loan Services, Inc. or its successor in interest.
"Money Term": With respect to any Serviced Loan, the maturity date,
Mortgage Rate, Stated Principal Balance, amortization term or payment frequency
thereof or any provision thereof requiring the payment of a Prepayment Premium
or Yield Maintenance Charge in connection with a Principal Prepayment (but not
any late fees or default interest provisions).
"Moody's": Xxxxx'x Investors Service, Inc., or its successor in
interest. If Moody's nor any successor remains in existence, "Moody's" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of Moody's herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Serviced Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Serviced Loan, the
amount of any interest accrued thereon at the related Mortgage Rate (other than
Additional Interest) that, by virtue of a modification, is added to the
outstanding principal balance of such Serviced Loan instead of being payable on
the related Due Date on which it would otherwise have been due.
"Mortgage File": With respect to any Mortgage Loan and, in the case of
each Loan Combination, also with respect to each Non-Trust Loan that is part of
such Loan Combination, the following documents collectively (which, in the case
of each Loan Combination, except for the Mortgage Notes referred to in clause
(i) of this definition and any modifications thereof referred to in clause (vi)
of this definition, relate to the entire such Loan Combination):
(i) either (A) in the case of any Mortgage Loan (including any
Combination Mortgage Loan), the original executed Mortgage Note
including any power of attorney related to the execution
thereof, together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or
implied) to the order of "LaSalle Bank National Association, as
trustee for the registered holders of Citigroup Commercial
Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through
Certificates, Series 2006-C4", or in blank (or a lost note
affidavit and indemnity with a copy of such Mortgage Note
attached thereto) or (B) in the case of any Non-Trust Loan, a
copy of the executed Mortgage Note;
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not
yet returned by the applicable
34
recording office) with evidence of recording indicated thereon
or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by
the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
any missing recording information and, if delivered in blank,
the name of the assignee), of (A) the Mortgage, (B) any related
Assignment of Leases (if such item is a document separate from
the Mortgage) and (C) any other recorded document relating to
the Mortgage Loan otherwise included in the Mortgage File, in
favor of "LaSalle Bank National Association, as trustee for the
registered holders of Citigroup Commercial Mortgage Trust
2006-C4, Commercial Mortgage Pass-Through Certificates, Series
2006-C4" (and, in the case of a Loan Combination, also on
behalf of the related Non-Trust Loan Noteholder(s)), or in
blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant
to clause (iv) above), in favor of "LaSalle Bank National
Association, as trustee for the registered holders of Citigroup
Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4" (and, in the case of
a Loan Combination, also on behalf of the related Non-Trust
Loan Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances
where the terms or provisions of the Mortgage or Mortgage Note
have been consolidated or modified or the subject Serviced Loan
has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding
commitment (which may be a pro forma policy or specimen version
of, or a marked commitment for, the policy that has been
executed by an authorized representative of the title company
or an agreement to provide the same pursuant to binding escrow
instructions executed by an authorized representative of the
title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other evidence
of filing reasonably satisfactory to the Depositor of any prior
UCC Financing Statements in favor of the originator of the
subject Serviced Loan or in favor of any assignee prior to the
Trustee (but only to the extent the related Mortgage Loan
Seller had possession of such UCC Financing Statements when it
was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing
office; and, if there is an effective UCC Financing Statement
in favor of the Mortgage Loan Seller on record with the
applicable public office for UCC Financing Statements, an
original UCC Financing Statement assignment, in form suitable
for filing in favor of LaSalle Bank National Association, as
trustee for the
35
registered holders of Citigroup Commercial Mortgage Trust
2006-C4, Commercial Mortgage Pass-Through Certificates, Series
2006-C4 (and, in the case of any Loan Combination, also on
behalf of the related Non-Trust Loan Noteholder(s)), as
assignee, or in blank;
(ix) an original or a copy of any (A) Ground Lease and ground lessor
estoppel, (B) loan guaranty or indemnity, (C) lender's
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor; and
(xi) copies of any loan agreement, escrow agreement, security
agreement or letter of credit relating to a Mortgage Loan;
provided that, whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi), (ix)(B), (ix)(C), (ix)(D), (x) and (xi) of this definition, shall be
deemed to include only such documents to the extent the Trustee or Custodian has
actual knowledge of their existence.
"Mortgage Loan": Subject to Section 2.03(f), each of the mortgage
loans (or portions thereof) transferred and assigned to the Trust Fund pursuant
to Section 2.01 and listed on the Mortgage Loan Schedule and from time to time
held in the Trust Fund. As used herein, the term "Mortgage Loan" includes the
related Mortgage Note, Mortgage and other security documents contained in the
related Mortgage File.
"Mortgage Loan Purchase Agreement": Each of the Citigroup Mortgage
Loan Purchase Agreement, the BCRE Mortgage Loan Purchase Agreement and the PNC
Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund attached hereto as
Schedule I and in a computer readable format. Such list shall set forth the
following information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, county, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
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(vi) the (A) original term to stated maturity, (B) remaining term
to stated maturity and (C) the Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Mortgage Loan and, if so,
the Anticipated Repayment Date and Additional Interest Rate
for such ARD Mortgage Loan;
(xii) the related Mortgage Loan Seller;
(xiii) whether such Mortgage Loan is insured by an environmental
policy;
(xiv) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xv) whether such Mortgage Loan is a Defeasance Loan;
(xvi) whether the Mortgage Loan is secured by a letter of credit;
(xvii) whether such Mortgage Loan is an Interest Reserve Mortgage
Loan;
(xviii) whether payments on such Mortgage Loan are made to a lock-box;
(xix) the amount of any Reserve Funds escrowed in respect of each
Mortgage Loan;
(xx) the number of grace days after the Due Date until Periodic
Payments incur late payment charges;
(xxi) the number of units or leasable square feet at the Mortgaged
Property; and
(xxii) whether the Mortgage Loan is in Loan Group No. 1 or Loan Group
No. 2.
"Mortgage Loan Seller": Citigroup, BCRE or PNC, as applicable.
"Mortgage Note": The original executed note or notes (collectively)
evidencing the indebtedness of a Mortgagor under a Mortgage Loan or Non-Trust
Loan, together with any rider, addendum or amendment thereto, or any renewal,
substitution or replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any REO
Mortgage Loans. None of the Non-Trust Loans and/or REO Non-Trust Loans shall
constitute part of the Mortgage Pool.
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"Mortgage Rate": With respect to (i) any Mortgage Loan or Non-Trust
Loan on or prior to its Stated Maturity Date, the fixed annualized rate, not
including any Additional Interest Rate, at which interest is scheduled (in the
absence of a default) to accrue on such Mortgage Loan or Non-Trust Loan from
time to time in accordance with the related Mortgage Note and applicable law;
(ii) any Mortgage Loan or Non-Trust Loan after its Stated Maturity Date, the
annualized rate described in clause (i) above determined without regard to the
passage of such Stated Maturity Date, but giving effect to any modification
thereof as contemplated by Section 3.20; and (iii) any REO Loan, the annualized
rate described in clause (i) or (ii), as applicable, above determined as if the
predecessor Mortgage Loan or Non-Trust Loan, as applicable, had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note
and/or, in the case of an indemnity deed of trust, the entity which granted the
lien on such Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Collection Account for such Distribution Date pursuant to Section 3.19(a) in
connection with such Prepayment Interest Shortfalls on the Mortgage Loans.
"Net Cash Flow" or "NCF": As defined in and determined in accordance
with the provisions of Exhibit E attached hereto.
"Net Investment Earnings": With respect to (i) the Collection Account,
any Servicing Account, any Reserve Account, any REO Account and any Loan
Combination Custodial Account for any Collection Period and (ii) the
Distribution Account, the Interest Reserve Account, the Additional Interest
Account or the Gain-on-Sale Reserve Account (if any) for any Distribution Date,
the amount, if any, by which the aggregate of all interest and other income
realized during the subject Collection Period, with respect to any of the
accounts described in clause (i) above, or during the one-month period ending on
the subject Distribution Date and beginning immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, beginning
on the Closing Date), with respect to any of the accounts described in clause
(ii) above, on funds held in such accounts, exceeds the aggregate of all losses,
if any, incurred during the subject Collection Period with respect to any of the
accounts described in clause (i) above, or during the one-month period ending on
the subject Distribution Date and beginning immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, beginning
on the Closing Date), with respect to any of the accounts described in clause
(ii) above, in connection with the investment of such funds in accordance with
Section 3.06.
"Net Investment Loss": With respect to (i) the Collection Account, any
Servicing Account, any Reserve Account, any REO Account and any Loan Combination
Custodial Account for any Collection Period and (ii) the Distribution Account,
the Interest Reserve Account, the Additional Interest Account or the
Gain-on-Sale Reserve Account (if any) for any Distribution Date, the amount by
which the aggregate of all losses, if any, incurred during the subject
Collection Period, with respect to any of the accounts described in clause (i)
above, or during the one-month period ending on the subject Distribution Date
and beginning immediately following the preceding Distribution Date (or, in the
case
38
of the initial Distribution Date, beginning on the Closing Date) with respect to
any of the accounts described in clause (ii) above, in connection with the
investment of funds held in such account in accordance with Section 3.06,
exceeds the aggregate of all interest and other income realized during the
subject Collection Period, with respect to any of the accounts described in
clause (i) above, or during the one-month period ending on the subject
Distribution Date and beginning immediately following the preceding Distribution
Date (or, in the case of the initial Distribution Date, beginning on the Closing
Date) with respect to any of the accounts described in clause (ii) above, in
connection with the investment of such funds in accordance with Section 3.06.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Mortgage Loan (or any successor REO Mortgage
Loan with respect thereto) that accrues (or is deemed to accrue) interest
on a 30/360 Basis, for any Distribution Date, an annual rate equal to the
Net Mortgage Rate for such Mortgage Loan in effect as of the Closing Date
(without regard to any modification, waiver or amendment of the terms of
such Mortgage Loan subsequent to the Closing Date); and
(B) With respect to any Mortgage Loan (or any successor REO Mortgage
Loan with respect thereto) that accrues (or is deemed to accrue) interest
on an Actual/360 Basis, for any Distribution Date, an annual rate equal to
the product of (1) 12, times (2) a fraction, expressed as a percentage, the
numerator of which fraction is, subject to adjustment as described below in
this definition, an amount of interest equal to the product of (a) the
number of days in the calendar month preceding the month in which such
Distribution Date occurs, multiplied by (b) the Stated Principal Balance of
such Mortgage Loan (or such successor REO Mortgage Loan) immediately
preceding such Distribution Date, multiplied by (c) 1/360, multiplied by
(d) the Net Mortgage Rate for such Mortgage Loan in effect as of the
Closing Date (without regard to any modification, waiver or amendment of
the terms of such Mortgage Loan subsequent to the Closing Date, but taking
into account the rate increases described in the second following
paragraph), and the denominator of which fraction is the Stated Principal
Balance of such Mortgage Loan (or such successor REO Mortgage Loan)
immediately preceding such Distribution Date.
Notwithstanding the foregoing, if the subject Distribution Date occurs
during January, except during a leap year, or February of any year subsequent to
2006, then the amount of interest constituting the numerator of the fraction
described in clause (B)(2) above will be decreased to reflect any Interest
Reserve Amount with respect to the subject Mortgage Loan (or REO Mortgage Loan)
transferred from the Distribution Account to the Interest Reserve Account in
such calendar month. Furthermore, if the subject Distribution Date occurs during
March of any year subsequent to 2006, then the amount of interest constituting
the numerator of the fraction described in clause (B)(2) above will be increased
to reflect any Interest Reserve Amount(s) with respect to the subject Mortgage
Loan (or REO Mortgage Loan) transferred from the Interest Reserve Account to the
Distribution Account for distribution on such Distribution Date.
In addition, with respect to each of the two (2) Mortgage Loans
secured by the Mortgaged Properties identified on the Mortgage Loan Schedule as
Mallard Crossing Apartments and Four Winds Apartments, respectively, and with
respect to any successor REO Mortgage Loan with respect to each such Mortgage
Loan, the respective Mortgage Rates increase annually for a specified
39
period, in accordance with the related Mortgage Notes, and such increases will
be reflected in the Net Mortgage Rate specified in clause (b)(2)(d) above.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Mortgage Loan, as of any date of determination, a rate per annum equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable
Master Servicing Fee Rate; and, with respect to any Non-Trust Loan or REO
Non-Trust Loan, as of any date of determination, a per annum rate equal to the
related Mortgage Rate minus any applicable Master Servicing Fee Rate.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or REO Mortgage Loan by the
Master Servicer, the Trustee or any Fiscal Agent, as the case may be, that, as
determined (in accordance with Section 4.03(c)) by the Master Servicer, the
Special Servicer, the Trustee or such Fiscal Agent, as applicable, in accordance
with the Servicing Standard, in the case of the Master Servicer and the Special
Servicer, the standard of care set forth in Section 8.01(a), in the case of the
Trustee, or in such Fiscal Agent's reasonable good faith judgment, in the case
of such Fiscal Agent, will not be ultimately recoverable (together with any
accrued and unpaid interest thereon) from Late Collections, Insurance Proceeds
or Liquidation Proceeds, or any other recovery on or in respect of such Mortgage
Loan or REO Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Serviced Loan or REO Property by the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, that, as determined (in accordance with Section 3.03(e)) by the
Master Servicer, the Special Servicer, the Trustee or such Fiscal Agent, as
applicable, in accordance with the Servicing Standard, in the case of the Master
Servicer and the Special Servicer, the standard of care set forth in Section
8.01(a), in the case of the Trustee, or in such Fiscal Agent's reasonable good
faith judgment, in the case of such Fiscal Agent, will not be ultimately
recoverable (together with any accrued and unpaid interest thereon) from late
collections, Insurance Proceeds, Liquidation Proceeds, or any other recovery on
or in respect of such Serviced Loan or REO Property.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class Y or Class R Certificate.
"Non-Trust Loan": Any mortgage loan that is part of a Loan Combination
but is not included in the Trust Fund. The Non-Trust Loans consist of the ShopKo
Portfolio Non-Trust Loans and the Wimbledon Place Apartments Non-Trust Loan.
"Non-Trust Loan Noteholder": Each holder of (i) the Mortgage Note for
a Non-Trust Loan and (ii) the corresponding rights under the related Co-Lender
Agreement.
"Non-Trust Loan Securities": Any securities evidencing an interest in
or secured by a Non-Trust Loan or a pool of mortgage loans that includes a
Non-Trust Loan.
"Non-United States Securities Person": Any Person other than a United
States Securities Person.
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"Non-United States Tax Person": Any Person other than a United States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel may
be a salaried counsel for the Depositor, the Master Servicer or the Special
Servicer) acceptable to and delivered to the Trustee or the Master Servicer, as
the case may be, except that any opinion of counsel relating to (a) the
qualification of any REMIC Pool as a REMIC; (b) the qualification of Grantor
Trust Y as a grantor trust; (c) compliance with the REMIC Provisions or the
Grantor Trust Provisions or (d) the resignation of the Master Servicer or
Special Servicer pursuant to Section 6.04 must be an opinion of counsel who is
in fact Independent of the Master Servicer, the Special Servicer or the
Depositor, as applicable.
"Option Price": As defined in Section 3.18(c).
"Original Class Notional Amount": With respect to the Class X
Certificates, the Original Class X Notional Amount.
"Original Class Principal Balance": With respect to any Class of
Principal Balance Certificates, the initial Class Principal Balance thereof as
of the Closing Date, in each case as specified in the Preliminary Statement.
"Original Class X Notional Amount": $2,263,536,038.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"P&I Advance": As to any Mortgage Loan or REO Mortgage Loan, any
advance made by the Master Servicer, the Trustee or any Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates, for any Distribution Date, a per
annum rate equal to the lesser of (A) 5.9280% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(ii) each Class of the Class A-2, Class A-SB, Class A-3, 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, for any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(iii) each Class of the Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates, for any Distribution Date, a
per annum rate equal to the lesser of (A) 5.6430% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date; and
41
(iv) the Class X Certificates, for any Distribution Date, the
weighted average of the Class X Strip Rates for the respective
Class X Components for such Distribution Date (weighted on the
basis of the respective Component Notional Amounts of such Class
X Components outstanding immediately prior to such Distribution
Date).
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Interest": With respect to any Mortgage Loan or Non-Trust
Loan (or any successor REO Loan with respect thereto), any amounts collected
thereon, other than late payment charges, Additional Interest, Prepayment
Premiums or Yield Maintenance Charges, that represent penalty interest (arising
out of a default) in excess of interest on the Stated Principal Balance of such
Mortgage Loan or Non-Trust Loan (or such successor REO Loan) accrued at the
related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Original Class Principal Balance or Original Class Notional Amount, as the
case may be, of the relevant Class. With respect to a Class R Certificate or
Class Y Certificate, the percentage interest in distributions to be made with
respect to the relevant Class, as stated on the face of such Certificate.
"Periodic Payment": With respect to any Mortgage Loan or Non-Trust
Loan as of any Due Date, the scheduled payment of principal and/or interest
(exclusive of Additional Interest) on such Mortgage Loan or Non-Trust Loan, as
the case may be, including any Balloon Payment, that is actually payable by the
related Mortgagor from time to time under the terms of the related Mortgage Note
(as such terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following obligations
or securities (including obligations or securities of or managed by LaSalle Bank
National Association (or any successor Trustee) if otherwise qualifying
hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof (having original
maturities of not more than 365 days); provided such obligations
are backed by the full faith and credit of the United States.
Such obligations must be limited to those instruments that have
a predetermined fixed dollar amount of principal due at maturity
that cannot vary or change or be liquidated prior to maturity.
If such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(ii) repurchase obligations with respect to any security described in
clause (i) above (having original maturities of not more than
365 days); provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such
obligations are rated in the highest applicable rating
categories of each of Fitch, Xxxxx'x and S&P or such lower
rating (not less than one of the four highest
42
applicable rating categories) as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates or any Non-Trust Loan Securities,
as evidenced in writing by such rating agencies. In addition,
its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that
index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest applicable rating
categories of each of Fitch, Xxxxx'x and S&P or such lower
rating (not less than one of the four highest applicable rating
categories) as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates or
any Non-Trust Loan Securities, as evidenced in writing by such
rating agencies. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated,
the commercial paper is United States Dollar denominated and
amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in
the highest applicable rating category of each of Fitch, Xxxxx'x
and S&P or such lower rating (not less than one of the four
highest applicable rating categories) as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates or any Non-Trust Loan Securities,
as evidenced in writing by such rating agencies. The commercial
paper by its terms must have a predetermined fixed dollar amount
of principal due at maturity that cannot vary or change. In
addition, its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is
variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately
with that index;
(v) units of money market funds that maintain a constant asset value
and which are rated in the highest applicable rating category by
each of Fitch, Xxxxx'x and S&P (or such lower rating (not less
than one of the four highest applicable rating categories) as
will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates or any Non-Trust
Loan Securities, as evidenced in writing by such rating
agencies) and which seeks to maintain a constant net asset
value. In addition, its terms must have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change; and
43
(vi) any other obligation or security that constitutes a "cash flow
investment" within the meaning of Section 860G(a)(6) of the Code
and is acceptable to each of Fitch, Xxxxx'x and S&P, evidence of
which acceptability shall be provided in writing by each such
rating agency to the Master Servicer, the Special Servicer and
the Trustee; provided, however, in no event shall such other
obligation or security be rated less than "AA/F-1" by Fitch,
"Aa3/P+" by Xxxxx'x or "AA/A-1" by S & P;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that the ratings of S&P shall not be applicable except with
respect to an investment of funds related to a Non-Trust Loan (or any successor
REO Non-Trust Loan with respect thereto) that backs any Non-Trust Loan
Securities rated by S & P; and provided, further, that no rating confirmation
need be obtained with respect to any Non-Trust Loan Securities in connection
with establishing whether any investment is a Permitted Investment unless such
investment involves funds related to a Non-Trust Loan (or any successor REO
Non-Trust Loan) that backs such Non-Trust Loan Securities.
"Permitted Transferee": Any Transferee of a Class R Certificate other
than a Disqualified Organization, a Plan, a Non-United States Tax Person or a
United States Tax Person with respect to whom income on the Class R Certificate
is allocable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other United
States Tax Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Class R Certificateholder": As to any taxable year of any
REMIC Pool, the Holder of Certificates holding the largest Percentage Interest
of the Class R Certificates.
"PNC": PNC Bank, National Association or its successor in interest.
"PNC Mortgage Loan Purchase Agreement": That certain mortgage loan
purchase agreement, dated as of June 2006, between the Depositor and PNC and
relating to the transfer of the PNC Mortgage Loans to the Depositor.
"PNC Mortgage Loans": Each of the Mortgage Loans transferred and
assigned to the Depositor pursuant to the PNC Mortgage Loan Purchase Agreement
and each Qualified Substitute Mortgage Loan delivered in replacement thereof in
accordance with this Agreement and the PNC Mortgage Loan Purchase Agreement.
"Pool REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled
substantially as follows: "[NAME OF SPECIAL SERVICER], as Special Servicer for
[NAME OF TRUSTEE], as Trustee, on behalf of and in trust for the registered
holders of
44
Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through
Certificates, Series 2006-C4."
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Mortgage Loan is repaid on
its Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Serviced Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Serviced Loan following
such Serviced Loan's Due Date in such Collection Period, the amount of interest
(net of the related Master Servicing Fee and, if applicable, any related Penalty
Interest and Additional Interest) accrued on the amount of such Principal
Prepayment during the period from and after such Due Date and ending on the date
such Principal Prepayment was applied to such Serviced Loan, to the extent
collected (exclusive of any related Prepayment Premium or Yield Maintenance
Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Serviced Loan
that was subject to a Principal Prepayment in full or in part during any
Collection Period, which Principal Prepayment was applied to such Serviced Loan
prior to such Serviced Loan's Due Date in such Collection Period, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any Prepayment Premium or Yield Maintenance Charge actually collected), that
would have accrued on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Serviced Loan and ending on the day immediately preceding such Due Date,
inclusive (exclusive, however, of (i) any related Master Servicing Fees that
would have been payable out of the uncollected interest and (ii) any portion of
the uncollected interest that would have constituted Penalty Interest and/or
Additional Interest).
"Prepayment Premium": Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Prime Rate": The "prime rate" published in the "Money Rates" Section
of The Wall Street Journal, as such "prime rate" may change from time to time.
If The Wall Street Journal ceases to publish the "prime rate," then the Master
Servicer shall select an equivalent publication that publishes such "prime
rate"; and if such "prime rate" is no longer generally published or is limited,
regulated or administered by a governmental or quasi-governmental body, then the
Master Servicer shall select a comparable interest rate index. In either case,
such selection shall be made by the Master Servicer in its sole discretion and
the Master Servicer shall notify the Trustee and the Special Servicer in writing
of its selection.
"Principal Balance Certificate": Any Class X-0, Xxxxx X-0, Class A-SB,
Class A-3, 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 Certificate.
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"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to:
(a) the aggregate of the principal portions of all Periodic Payments
(other than Balloon Payments) and any Assumed Periodic Payments due or
deemed due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, to the extent paid by the
related Mortgagor during or prior to, or otherwise received during, the
related Collection Period or advanced by the Master Servicer, the Trustee
or any Fiscal Agent, as applicable, for such Distribution Date; plus
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period; plus
(c) with respect to any Mortgage Loan as to which the related Stated
Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (other than a Principal Prepayment) made by or on
behalf of the related Mortgagor during the related Collection Period
(including any Balloon Payment), net of any portion of such payment that
represents a recovery of the principal portion of any Periodic Payment
(other than a Balloon Payment) due, or the principal portion of any Assumed
Periodic Payment deemed due, in respect of such Mortgage Loan on a Due Date
during or prior to the related Collection Period and included as part of
the Principal Distribution Amount for such Distribution Date or any prior
Distribution Date pursuant to clause (a) above; plus
(d) the aggregate of the principal portion of all Liquidation
Proceeds, Insurance Proceeds and, to the extent not otherwise included in
clause (a), (b) or (c) above, payments that were received on the related
Mortgage Loans during the related Collection Period and that were
identified and applied by the Master Servicer and/or Special Servicer as
recoveries of principal of such Mortgage Loans, in each case net of any
portion of such amounts that represents a recovery of the principal portion
of any Periodic Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Periodic Payment deemed due, in respect of
the related Mortgage Loan on a Due Date during or prior to the related
Collection Period and included as part of the Principal Distribution Amount
for such Distribution Date or any prior Distribution Date pursuant to
clause (a) above; plus
(e) with respect to any REO Properties, the aggregate of the principal
portions of all Assumed Periodic Payments deemed due in respect of the
related REO Mortgage Loans for their respective Due Dates occurring during
the related Collection Period to the extent received (in the form of REO
Revenues or otherwise) during the related Collection Period or advanced
with respect to such Distribution Date; plus
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties and
that were identified and applied by the Master Servicer and/or Special
Servicer as recoveries of principal of the related REO Mortgage Loans, in
each case net of any portion of such amounts that represents a recovery of
the principal portion of any Periodic Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Periodic Payment
deemed due, in respect of the related REO Mortgage Loan or the predecessor
Mortgage Loan on a Due Date during or prior to the related Collection
Period and included as
46
part of the Principal Distribution Amount for such Distribution Date or any
prior Distribution Date pursuant to clause (a) or (e) above; plus
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount
for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Principal Balance Certificates on
such immediately preceding Distribution Date pursuant to Section 4.01; plus
(h) any amounts that were used to reimburse Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) from principal
collections on the Mortgage Pool pursuant to Section 3.05(a) hereof which
are subsequently recovered on the related Mortgage Loan or REO Mortgage
Loan during the related Collection Period; less
(i) the amount of any reimbursements of Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) that are paid or
reimbursed from principal collections on the Mortgage Pool pursuant to
Section 3.05(a) hereof with respect to such Distribution Date where such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date pursuant to any of clauses
(a) through (f) above;
provided that, for the final Distribution Date, the Principal Distribution
Amount shall in no event be less than the aggregate Stated Principal Balance of
the Mortgage Pool immediately prior to such Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan or Non-Trust Loan that is received in advance of its
scheduled Due Date; provided that it shall not include a payment of principal
that is accompanied by an amount of interest representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
"Privileged Person": Any Certificateholder, any Certificate Owner, any
party hereto, any Person identified to the Trustee or the Master Servicer, as
applicable, as a prospective transferee of a Certificate or interest therein (or
a licensed or registered investment adviser representing such Person), any
Rating Agency, any Mortgage Loan Seller, any Non-Trust Loan Noteholder, any
Underwriter or any designee of the Depositor or any party hereto; provided that
no Certificate Owner or prospective transferee of a Certificate or interest
therein (or a licensed or registered investment adviser representing such
Person) shall be considered a "Privileged Person" or be entitled to a password
or restricted access as contemplated by Section 3.15 or Section 4.02 unless such
Person has delivered to the Trustee or the Master Servicer, as applicable, a
certification in the form of Exhibit L-1 or Exhibit L-2, as applicable, which
certification is available on the Trustee's Internet Website.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated June 8, 2006, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated June
20, 2006 of the Depositor relating to the registration of the Registered
Certificates under the Securities Act, together with the supplement thereof
dated June 26, 2006.
47
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Mortgage Loan (or REO Property),
a cash price equal to the sum of (without duplication): (a) the outstanding
principal balance of such Mortgage Loan (or the related REO Mortgage Loan) as of
the date of purchase, (b) all accrued and unpaid interest on such Mortgage Loan
(or the related REO Mortgage Loan) at the related Mortgage Rate (other than
Additional Interest and Penalty Interest) to but not including the Due Date in
the Collection Period of purchase plus any accrued and unpaid interest on P&I
Advances made with respect to such Mortgage Loan (or the related REO Mortgage
Loan), (c) all related and unreimbursed Servicing Advances plus any accrued and
unpaid interest thereon, (d) any reasonable costs and expenses, including, but
not limited to, the cost of any enforcement action (including reasonable legal
fees incurred in respect of such action), incurred by the Master Servicer, the
Special Servicer, the Trustee or the Trust Fund in connection with any purchase
by a Mortgage Loan Seller (to the extent not included in clause (c) above or
clause (e) below) and (e) any other Additional Trust Fund Expenses in respect of
such Mortgage Loan (including any Additional Trust Fund Expenses previously
reimbursed or paid by the Trust Fund but not so reimbursed by the related
Mortgagor or other party or from Insurance Proceeds or condemnation proceeds or
any other collections in respect of the Mortgage Loan or the related Mortgaged
Property from a source other than the Trust Fund, and including, if applicable,
any Liquidation Fee payable to the Special Servicer in respect of such Mortgage
Loan pursuant to Section 3.11(c)); provided that the Purchase Price shall not be
reduced by any outstanding P&I Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum insurance financial strength or claims paying
ability rating of at least "A3" by Xxxxx'x, "A-" by Fitch and "A-" by S&P (or
the obligations of which are guaranteed or backed in writing by a company having
such a financial strength or claims paying ability rating), and (ii) with
respect to the fidelity bond and errors and omissions Insurance Policy required
to be maintained pursuant to Section 3.07(c), an insurance company that has a
financial strength or claims paying ability rated no lower than two rating
categories (without regard to pluses or minuses or numerical qualifications)
below the rating assigned to the then highest rated outstanding Certificate (or,
with respect to the required Xxxxx'x rating, if not rated by Xxxxx'x, then at
least "A-" by two other nationally recognized statistical rating organizations
(which may include Fitch)) but in no event lower than "A-" by Fitch, "A3" by
Xxxxx'x (or, if not rated by Xxxxx'x, then at least "A-" by two other nationally
recognized statistical rating organizations (which may include Fitch)) and "A-"
by S&P, or, in the case of clauses (i) and (ii), such other rating as each
applicable rating agency shall have confirmed in writing will not cause such
rating agency to downgrade, qualify or withdraw the then-current rating assigned
to any of the Certificates or any Non-Trust Loan Securities that are then
currently being rated by such rating agency; provided that the ratings of S&P
shall not be applicable except with respect to an insurer that is providing
insurance coverage related to a Non-Trust Loan (or any successor REO Non-Trust
Loan with respect thereto) that backs any Non-Trust Loan Securities rated by S &
P; and provided, further, that no rating confirmation need be obtained with
respect to any Non-Trust Loan Securities in connection with establishing whether
any insurer is a Qualified Insurer unless such insurer is providing insurance
coverage related to a Non-Trust Loan (or any successor REO Non-Trust Loan) that
backs such Non-Trust Loan Securities.
48
"Qualified 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 interest due during
or prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted 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 deleted Mortgage Loan; (iii) have
the same Due Date as the deleted Mortgage Loan; (iv) accrue interest on the same
basis as the deleted Mortgage Loan (for example, on a 30/360 Basis); (v) have a
remaining term to stated maturity not greater than, and not more than two (2)
years less than, the remaining term to stated maturity of the deleted Mortgage
Loan; (vi) have a Loan-to-Value Ratio not higher than the lower of the original
Loan-to-Value Ratio of the deleted Mortgage Loan and the then-current
Loan-to-Value Ratio of the deleted Mortgage Loan; (vii) 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
Assessment that indicates no adverse environmental conditions with respect to
the related Mortgaged Property and which will be delivered as a part of the
related Servicing File; (ix) have a current Debt Service Coverage Ratio
(calculated to include the additional debt from any encumbrance) of not less
than the higher of the original Debt Service Coverage Ratio (calculated to
include the additional debt from any encumbrance) of the deleted Mortgage Loan
and the then-current Debt Service Coverage Ratio (calculated to include the
additional debt from any encumbrance) of the deleted 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 two (2)
years prior to the Rated Final Distribution Date; (xii) not be substituted for a
deleted Mortgage Loan unless the Trustee has received prior confirmation in
writing by each Rating Agency that such substitution will not 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 Mortgage Loan Seller);
(xiii) have a date of origination that is not more than 12 months prior to the
date of substitution; (xiv) have been approved by the Controlling Class
Representative (or, if there is no Controlling Class Representative then
serving, by the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class); and (xv) not be substituted for a
deleted Mortgage Loan if it would result in the termination of the REMIC status
of any REMIC Pool or the imposition of tax on any REMIC Pool 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 (at the applicable Mortgage
Loan Seller's expense). In the event that one or more mortgage loans are
substituted for one or more deleted Mortgage Loans, then the amounts described
in clause (i) shall be determined on the basis of aggregate 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 Mortgage Loan shall have a Net Mortgage Rate
that is less than the highest Pass-Through Rate of any Class of Principal
Balance Certificates bearing a fixed rate and outstanding at the time of the
substitution. When a Qualified Substitute Mortgage Loan is substituted for a
deleted 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 March 2049.
"Rating Agency": Each of Fitch and Xxxxx'x.
49
"Realized Loss": With respect to: (1) any defaulted Mortgage Loan or
Non-Trust Loan as to which a Final Recovery Determination has been made, or with
respect to any successor REO Loan as to which a Final Recovery Determination has
been made as to the related REO Property, an amount (not less than zero) equal
to (a) the unpaid principal balance of such Mortgage Loan, Non-Trust Loan or REO
Loan, as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (b) without taking into
account the amount described in subclause (1)(c) of this definition, all accrued
but unpaid interest on such Mortgage Loan, Non-Trust Loan or REO Loan, as the
case may be, at the related Mortgage Rate to but not including the Due Date in
the Collection Period in which the Final Recovery Determination was made
(exclusive of any portion thereof that constitutes Prepayment Premiums or Yield
Maintenance Charges), minus (c) all payments and proceeds, if any, actually
received in respect of, and allocable as interest on or principal of, such
Mortgage Loan, Non-Trust Loan or REO Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made; (2) any
defaulted Mortgage Loan or Non-Trust Loan as to which any portion of the
principal or previously accrued interest (other than Additional Interest and
Penalty Interest) payable thereunder was canceled in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan or Non-Trust Loan, as
the case may be, granted or agreed to by the Special Servicer pursuant to
Section 3.20, the amount of such principal and/or interest so canceled; (3) any
Mortgage Loan or Non-Trust Loan as to which the Mortgage Rate thereon has been
permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan or Non-Trust Loan, as
the case may be, granted or agreed to by the Special Servicer pursuant to
Section 3.20, the amount of the consequent reduction in the interest portion of
each successive Periodic Payment due thereon (each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Periodic
Payment); and (4) any Mortgage Loan for which a Final Recovery Determination has
been made, to the extent not included in clause (1) above, Nonrecoverable
Advances (including interest on such Nonrecoverable Advance) to the extent paid
out of general collections on the Mortgage Pool.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-1A, Class A-M, Class A-J, Class B, Class C or Class D Certificate.
"Regular Certificate": Any Principal Balance Certificate or Class X
Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 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 S": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, one or collectively more global Certificates
of such Class registered in the name of the Depository or its nominee, in
definitive, fully registered form without interest coupons, each of which
Certificates bears a Regulation S CUSIP number.
50
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"Relevant Servicing Criteria" means, with respect to any of the
various parties listed on Exhibit B hereto, the Servicing Criteria applicable to
the subject party, as set forth on Exhibit B hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Sub-Servicing Function Participant engaged by the
Trustee, the Master Servicer or the Special Servicer, the term "Relevant
Servicing Criteria" may refer to a portion of the Relevant Servicing Criteria
applicable to the Master Servicer, the Special Servicer or the Trustee.
"Remaining Available Distribution Amount" shall mean, with respect to
any Class of Class B Through P Certificates for any Distribution Date, an amount
equal to the Available Distribution Amount for such Distribution Date, reduced
by all distributions to be made on such Distribution Date: (i) pursuant to
Section 4.01(a) with respect to the Class X, Class X-0, Xxxxx X-0, Class A-SB,
Class A-3, Class A-1A, Class A-M and Class A-J Certificates; and (ii) pursuant
to Section 4.01(b) with respect to any and all other Classes of the Class B
Through P Certificates that evidence a right to payment in accordance with such
Section 4.01(b) that is prior to the right to payment evidenced by the subject
Class of Class B Through P Certificates. The priority of payments on the various
Classes of the Class B Through P Certificates under Section 4.01(b) shall be
consistent with the alphabetic order of the respective Class designations of
such Classes of Certificates, with the Class B Certificates entitling the
Holders thereof to the highest payment priority under Section 4.01(b) as among
the respective Classes of the Class B Through P Certificates and the Class P
Certificates entitling the Holders thereof to the lowest payment priority under
Section 4.01(b) as among the respective Classes of the Class B Through P
Certificates.
"Remaining Principal Distribution Amount" shall mean, with respect to
any Class of Class B Through P Certificates for any Distribution Date, an amount
equal to the Principal Distribution Amount for such Distribution Date, reduced
by all distributions of principal to be made on such Distribution Date: (i)
pursuant to Section 4.01(a) with respect to the Class X-0, Xxxxx X-0, Class
A-SB, Class A-3, Class A-1A, Class A-M and Class A-J Certificates; and (ii)
pursuant to Section 4.01(b) with respect to any and all other Classes of the
Class B Through P Certificates that evidence a right to payment in accordance
with such Section 4.01(b) that is prior to the right to payment evidenced by the
subject Class of Class B Through P Certificates. The priority of payments on the
various Classes of the Class B Through P Certificates under Section 4.01(b)
shall be consistent with the alphabetic order of the respective Class
designations of such Classes of Certificates, with the Class B Certificates
entitling the Holders thereof to the highest payment priority under Section
4.01(b) as among the respective Classes of the Class B Through P Certificates
and the Class P Certificates entitling the Holders thereof to the lowest payment
priority under Section 4.01(b) as among the respective Classes of the Class B
Through P Certificates.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder with respect
to which a separate REMIC election is to be made and, consisting of: (i) all of
the Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received after the Closing
51
Date (excluding all amounts due with respect to such Mortgage Loans on or before
the Cut-off Date and all Additional Interest, if any, on such Mortgage Loans),
together with all documents included in the related Mortgage Files and any
related Escrow Payments and Reserve Funds; (iii) all amounts held from time to
time in the Interest Reserve Account, the Collection Account, the Distribution
Account, the Gain-on-Sale Reserve Account, any Pool REO Account and, except to
the extent they are allocable to a Non-Trust Loan or REO Non-Trust Loan, any
Loan Combination Custodial Account; (iv) any REO Property acquired in respect of
a Mortgage Loan, in each case exclusive of the interest of any related Non-Trust
Loan Noteholder; (v) the rights of the Depositor under Sections 1, 2, 3, 8 and,
if applicable, 21 (and, to the extent related to the foregoing, Sections 8
through 17 and 19) of each of the Mortgage Loan Purchase Agreements; and (vi)
the rights of the mortgagee under all Insurance Policies with respect to the
Mortgage Loans, in each case exclusive of the interest of any related Non-Trust
Loan Noteholder; provided that REMIC I shall not include any Non-Trust Loan or
any successor REO Non-Trust Loan with respect thereto or any payments or other
collections of principal, interest, Prepayment Premiums, Yield Maintenance
Charges or other amounts collected on a Non-Trust Loan or any successor REO
Non-Trust Loan with respect thereto.
"REMIC I Deferred Interest": The amount by which interest
distributable to REMIC II with respect to any REMIC I Regular Interest is
reduced by the amount of Mortgage Deferred Interest allocable to such REMIC I
Regular Interest on any Distribution Date.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the amount specified as such in the Preliminary Statement hereto. On each
Distribution Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall be: (i) permanently reduced by all distributions of principal
deemed to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(k); (ii) further permanently reduced
on such Distribution Date by all Realized Losses and Additional Trust Fund
Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b); and (iii) increased by any REMIC I Deferred
Interest with respect thereto for such Distribution Date.
"REMIC I Regular Interest": Any of the 21 uncertificated "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC I
issued hereunder, as described (and bearing the designations specified) in the
Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, for any Distribution Date, an annual rate equal to the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts deemed distributed thereon from time
to time, conveyed in trust to the Trustee for the benefit of REMIC II, as holder
of the REMIC I Regular Interests, and the Holders of the Class R Certificates,
insofar as the Class R Certificates evidence the sole class of residual
interests in REMIC II, with respect to which segregated pool of assets a
separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-SB, Class
A-3, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class X, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P Certificate or, insofar as it represents a portion of the sole class
of residual interests in REMIC II, any Class R Certificate.
52
"REMIC Pool": Each of REMIC I and REMIC II.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final Treasury regulations and any published
rulings, notices and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The Pool REO Account or any Loan Combination REO
Account, as applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": An REO Mortgage Loan or an REO Non-Trust Loan, as
applicable.
"REO Mortgage Loan": The Mortgage Loan deemed for purposes hereof to
be outstanding with respect to each REO Property. Each REO Mortgage Loan shall
be deemed to be outstanding for so long as the related REO Property remains part
of the Trust Fund and deemed to provide for Periodic Payments of principal
and/or interest equal to its Assumed Periodic Payment and otherwise to have the
same terms and conditions as its predecessor Mortgage Loan (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan and the acquisition of the related REO Property as part of the
Trust Fund). Each REO Mortgage Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance, respectively, of its predecessor Mortgage
Loan as of the date of the related REO Acquisition. All Periodic Payments (other
than a Balloon Payment), Assumed Periodic Payments (in the case of a Balloon
Mortgage Loan delinquent in respect of its Balloon Payment) and other amounts
due and owing, or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, shall be deemed to
continue to be due and owing in respect of an REO Mortgage Loan. In addition,
Nonrecoverable Advances (including interest on such Nonrecoverable Advances)
with respect to such REO Mortgage Loan that were paid from collections on the
Mortgage Loans and resulted in principal distributed to the Certificateholders
being reduced pursuant to Section 3.05(a) hereof, shall be deemed outstanding
until recovered or until a Final Recovery Determination is made. Collections in
respect of each REO Mortgage Loan (after provision for amounts to be applied to
the payment of, or to be reimbursed to the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent for the payment of, the costs of
operating, managing, selling, leasing and maintaining the related REO Property
or for the reimbursement of the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent for other related Servicing Advances as provided in
this Agreement) shall be treated: first, as a recovery of Nonrecoverable
Advances (including interest on such Nonrecoverable Advance) with respect to
such REO Mortgage Loan, that were paid from collections on the Mortgage Loans
and resulted in principal distributed to the Certificateholders being reduced
pursuant to Section 3.05(a) hereof; second, as a
53
recovery of accrued and unpaid interest on such REO Mortgage Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
receipt (exclusive of any portion thereof that constitutes Additional Interest);
third, as a recovery of principal of such REO Mortgage Loan to the extent of its
entire unpaid principal balance; and fourth, in accordance with the normal
servicing practices of the Master Servicer, as a recovery of any other amounts
due and owing to the Trust in respect of such REO Mortgage Loan, including,
without limitation, (i) Yield Maintenance Charges, Prepayment Premiums and
Penalty Interest and (ii) Additional Interest and other amounts, in that order;
provided that, in the case of any REO Mortgage Loan that succeeds a Combination
Mortgage Loan, the foregoing allocations shall be subject to the related
Co-Lender Agreement. Notwithstanding the foregoing, all amounts payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid servicing
compensation and any unreimbursed Servicing Advances and P&I Advances, together
with any interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent in respect of such Servicing Advances
and P&I Advances in accordance with Sections 3.03(d) and 4.03(d), shall continue
to be payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or such Fiscal Agent, as the case may be, in respect of an REO Mortgage
Loan pursuant to Section 3.05(a).
"REO Non-Trust Loan": The loan deemed for purposes hereof to succeed a
Non-Trust Loan and to be outstanding with respect to any Loan Combination REO
Property. Each REO Non-Trust Loan shall be deemed to be outstanding for so long
as the related Loan Combination REO Property or any interest therein remains
part of the Trust Fund and, further, be deemed to have the same terms and
conditions as the predecessor Non-Trust Loan (such terms and conditions to be
applied without regard to the default on such predecessor loan and the
acquisition of the related Loan Combination REO Property or any interest therein
as part of the Trust Fund). Each REO Non-Trust Loan shall be deemed to have an
initial unpaid principal balance and Stated Principal Balance equal to the
unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Non-Trust Loan as of the date of the related REO Acquisition. All
amounts due and owing, or deemed to be due and owing, in respect of a Non-Trust
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of a successor REO Non-Trust Loan. The Master
Servicer shall allocate proceeds, revenues and other collections received on or
with respect to the related Loan Combination REO Property to amounts due and
owing, or deemed to be due and owing, under the subject REO Non-Trust Loan in
accordance with the related Co-Lender Agreement. Notwithstanding the foregoing,
all amounts payable or reimbursable to the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent in respect of a Non-Trust Loan as of
the date of the related REO Acquisition, including, without limitation, any
unpaid servicing compensation and any unreimbursed Servicing Advances, together
with any interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent in respect of such Servicing Advances
in accordance with Sections 3.03(d) and 4.03(d), shall continue to be payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee or such
Fiscal Agent, as the case may be, in respect of the REO Non-Trust Loan pursuant
to Section 3.05(e) or, to the extent provided thereby, Section 3.05(a), as the
case may be.
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders (or, in the case
of a Loan Combination REO Property, the Certificateholders and the related
Non-Trust Loan Noteholder(s)) through foreclosure, acceptance of a deed-in-lieu
of foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Serviced Loan (or a Loan Combination).
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"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal Mortgage
Loan, an Appraisal of the related Mortgaged Property from an Independent
Appraiser selected by the Special Servicer.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is 60
days or more delinquent in respect of any Periodic Payments (other than a
Balloon Payment), (ii) that becomes an REO Mortgage Loan (in which case
references to "Required Appraisal Mortgage Loan" shall also include such REO
Mortgage Loan), (iii) that has been modified by the Special Servicer to reduce
the amount of any Periodic Payment (other than a Balloon Payment), (iv) with
respect to which a receiver is appointed and continues in such capacity in
respect of the related Mortgaged Property, (v) with respect to which the related
Mortgagor declares bankruptcy or with respect to which the related Mortgagor is
subject to a bankruptcy proceeding or (vi) with respect to which any Balloon
Payment on such Mortgage Loan has not been paid by its scheduled maturity date
unless the Master Servicer has, on or prior to the due date of such Balloon
Payment, received written evidence from an institutional lender of such lender's
binding commitment to refinance such Mortgage Loan (acceptable to the Special
Servicer and the Controlling Class Representative) within 60 days after the Due
Date of such Balloon Payment (provided that if such refinancing does not occur
during such time specified in the commitment, the related Mortgage Loan will
immediately become a Required Appraisal Mortgage Loan); provided, however, that
a Required Appraisal Mortgage Loan will cease to be a Required Appraisal
Mortgage Loan:
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive full and
timely Periodic Payments under the terms of the subject Mortgage Loan (as
such terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20);
(b) with respect to the circumstances described in clauses (iv), (v)
and (vi) above, when such circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer and in accordance with the
Servicing Standard, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (iv) and (v), no later than the entry of
an order or decree dismissing such proceeding; and
(c) with respect to the circumstances described in clause (vi) above,
no later than the date that the Special Servicer agrees to an extension
pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the subject Mortgage Loan to continue to be
characterized as a Required Appraisal Mortgage Loan.
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For purposes of this Agreement, the term "Required Appraisal Mortgage
Loan", insofar as it relates to the ShopKo Portfolio Mortgage Loan shall mean
the ShopKo Portfolio Loan Combination, which Loan Combination shall therefore be
considered a single "Mortgage Loan" for the purposes of this "Required Appraisal
Mortgage Loan" definition.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses) of the
Mortgaged Property related to the subject Required Appraisal Mortgage Loan as
determined by a Required Appraisal or letter update or internal valuation, if
applicable; provided that for purposes of determining any Appraisal Reduction
Amount in respect of such Required Appraisal Mortgage Loan, such Appraisal
Reduction Amount shall be amended annually to reflect the Required Appraisal
Value determined pursuant to any Required Appraisal or letter update or internal
valuation, if applicable, of a Required Appraisal conducted subsequent to the
original Required Appraisal performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Serviced Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for environmental remediation, repairs, capital
improvements, tenant improvements and/or leasing commissions with respect to the
related Mortgaged Property.
"Responsible Officer": When used with respect to (i) the initial
Trustee, any officer or assistant officer in the Global Securities and Trust
Services Group of the initial Trustee, and (ii) any successor trustee, any
officer or assistant officer in the corporate trust department of the successor
trustee, or any other officer or assistant officer of the successor trustee
customarily performing functions similar to those performed by any of the above
designated officers to whom a particular matter is referred by the successor
trustee because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Servicer Reports": Each of the CMSA Servicer Watchlist,
CMSA Operating Statement Analysis, CMSA NOI Adjustment Worksheet and CMSA
Comparative Financial Status Report. If a Restricted Servicer Report is filed
with the Commission, it shall thereafter be an Unrestricted Servicer Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more global
certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, none of
which certificates bears a Regulation S Legend, and each of which certificates
has a Rule 144A CUSIP number.
"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.
"Scheduled Payment": With respect to any Mortgage Loan or Non-Trust
Loan, for any Due Date following the Cut-off Date as of which it is outstanding,
the scheduled Periodic Payment of principal and interest (other than Additional
Interest) on such Mortgage Loan or Non-Trust Loan, as the
56
case may be, that is or would be, as the case may be, payable by the related
Mortgagor on such Due Date under the terms of the related Mortgage Note as in
effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan or Non-Trust Loan, as the case may be, granted or agreed to by the
Special Servicer pursuant to Section 3.20 or acceleration of principal by reason
of default, and assuming that each prior Scheduled Payment has been made in a
timely manner; provided, however, that if the related loan documents for a Loan
Combination provide for a single monthly debt service payment for such Loan
Combination, then the Scheduled Payment for each Serviced Loan comprising such
Loan Combination for any Due Date shall be that portion of the monthly debt
service payment for such Loan Combination and such Due Date that is, in
accordance with the related loan documents and/or the related Co-Lender
Agreement, in the absence of default, allocable to interest at the related
Mortgage Rate on and/or principal of each such Serviced Loan comprising the
subject Loan Combination.
"Section 302 Requirements": As defined in Section 8.16(b).
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class X-0, Xxxxx X-0, Class A-SB, Class A-3,
Class A-1A or Class X Certificate.
"Senior Class A Certificate": Any Class X-0, Xxxxx X-0, Class A-SB,
Class A-3 or Class A-1A Certificate.
"Serviced Loan": Any Mortgage Loan or, if and when it is serviced
hereunder, any Non-Trust Loan, as applicable. The ShopKo Portfolio Non-Trust
Loans shall constitute Serviced Loans for so long as the ShopKo Portfolio
Mortgage Loan is part of the Trust Fund, and the Wimbledon Place Apartments
Non-Trust Loan shall constitute a Serviced Loan for so long as the Wimbledon
Place Apartments Mortgage Loan is part of the Trust Fund.
"Servicer": Any Person that constitutes a "servicer", as defined in
Item 1101(j) of Regulation AB, with respect to the Subject Securitization
Transaction.
"Servicer Notice": As defined in Section 3.14.
"Servicer Reports": Any of the Restricted Servicer Reports, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, the CMSA Loan Periodic
Update File, the CMSA Financial File, the CMSA Property File and the CMSA
Advance Recovery Report. Notwithstanding anything in this Agreement to the
contrary, in the event any of the electronic files listed in the previous
sentence are amended or changed in any material respect by the CMSA and placed
on the CMSA Website or otherwise recommended by the CMSA for commercial
mortgage-backed securities transactions generally, so long as such electronic
files and such supplemental reports are reasonably acceptable (as applicable) to
the Master Servicer, the Special Servicer and the Trustee, then the same shall
be used with respect to the Collection Period that commences at any time
following the date that is not later than three (3) months following adoption of
the form thereof by the CMSA.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
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"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and expenses
and reasonable fees of real estate brokers) incurred by or on behalf of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent in
connection with the servicing of a Serviced Loan, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer and the Special
Servicer, if any, set forth in Section 3.02 and Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, including the cost of any "forced placed" insurance policy purchased
by the Master Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Master Servicer or the Special Servicer is required
to cause to be insured pursuant to Section 3.07(a), (c) obtaining any Insurance
Proceeds or any Liquidation Proceeds of the nature described in clauses (i)
through (v) of the definition of "Liquidation Proceeds," (d) any enforcement or
judicial proceedings with respect to a Mortgaged Property, including, without
limitation, foreclosures, (e) any Required Appraisal or other appraisal
expressly required or permitted to be obtained hereunder, (f) the operation,
management, maintenance and liquidation of any REO Property, including, without
limitation, appraisals and compliance with Section 3.16(a) (to the extent not
covered by available funds in the applicable REO Account) and Section 3.20(g)
(to the extent not paid by the related Mortgagor) and (g) compliance with the
obligations of the Master Servicer or the Trustee set forth in Section 2.03(a)
or (b). Notwithstanding anything to the contrary, "Servicing Advances" shall not
include allocable overhead of the Master Servicer or the Special Servicer, such
as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
general and administrative costs of the Master Servicer and the Special
Servicer, costs or expenses incurred by any such party in connection with its
purchase of a Serviced Loan or REO Property, or costs or expenses expressly
required to be borne by the Master Servicer or Special Servicer without
reimbursement pursuant to the terms of this Agreement.
"Servicing Criteria": The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
"Servicing Fees": With respect to each Serviced Loan and REO Loan, the
Master Servicing Fee, if any, and the Special Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than (i) those documents, opinions, reports and records specifically
excepted from the delivery requirements of Section 2.01(e) and (ii) the
documents required to be part of the related Mortgage File) delivered by the
related Mortgagor in connection with, or relating to the origination and
servicing of, any Serviced Loan that are reasonably required for the ongoing
administration of the Serviced Loan, including management agreements, cash
management agreements, lockbox agreements, franchise agreements, franchise
comfort letters (and evidence of required notification of transfer), appraisals,
surveys, engineering reports, environmental reports, operation and maintenance
(O&M) plans, financial statements, leases, rent rolls and tenant estoppels and
copies of documents required to be part of the Mortgage File.
"Servicing Function Participant": Any of: (i) the Master Servicer;
(ii) the Special Servicer; (iii) the Trustee; and (iv) any other party hereto,
in addition to the Master Servicer, the Special Servicer and the Trustee, that
is a "party participating in the servicing function" (within the meaning of the
instructions to Item 1122 of Regulation AB) as regards the Trust Fund.
"Servicing Officer": Any officer or employee of the Master Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Serviced Loans, whose
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name and specimen signature appear on a list of servicing officers furnished by
such party to the Trustee and the Depositor on the Closing Date, as such list
may be amended from time to time.
"Servicing Representative": With respect to the Master Servicer, the
Special Servicer or the Trustee, any other Person (including any Sub-Servicer,
subcontractor, vendor or agent) retained or engaged thereby to perform any
duties in connection with this Agreement or all or any portion of the Trust
Fund, the performance of which duties would cause such other Person to be, or
result in such other Person being, a Servicer or a Sub-Servicing Function
Participant.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration of the
Serviced Loans and any REO Properties for which it is responsible hereunder: (a)
in 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, generally services and administers similar mortgage loans with similar
borrowers and/or similar foreclosure properties, as applicable, (i) for other
third parties, giving due consideration to customary and usual standards of
practice of prudent institutional commercial mortgage loan servicers servicing
and administering mortgage loans and/or foreclosure properties for third
parties, as applicable, or (ii) held in its own portfolio, whichever standard is
higher; (b) with a view to (i) the timely collection of all Periodic Payments
due on each such Serviced Loan or, if any such Serviced Loan shall come into and
continue in default, the maximization of the recovery on such Serviced Loan on a
net present value basis (the relevant discounting of anticipated collections to
be performed at the related Mortgage Rate) and (ii) the best interests (as
determined by the Master Servicer or Special Servicer, as applicable, in its
reasonable and good faith judgment) of the Certificateholders (as a collective
whole) and the Trust Fund (or, in the case of any Loan Combination, the
Certificateholders, the Trust Fund and the related Non-Trust Loan Noteholder(s)
(as a collective whole), but taking into account, in the case of the Wimbledon
Place Apartments Loan Combination, to the extent consistent with the related
Co-Lender Agreement and the related Mortgage Loan documents, the subordinate
nature of the related Wimbledon Place Apartments Non-Trust Loan); and (c)
without regard to (i) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor, the Depositor, any Mortgage Loan Seller or any other party to the
transactions contemplated by this Agreement or any Affiliate thereof; (ii) the
ownership of any Certificate (or other interest in any Serviced Loan) by the
Master Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof; (iii) the right of the Master Servicer or the Special Servicer, as the
case may be, to receive compensation or other fees for its services rendered
pursuant to this Agreement; (iv) the obligations of the Master Servicer to make
Advances; (v) the ownership, servicing or management by the Master Servicer or
the Special Servicer or any Affiliate thereof for others of any other mortgage
loans or mortgaged property; (vi) any obligation of the Master Servicer or any
Affiliate of the Master Servicer to repurchase or substitute a Mortgage Loan as
a Mortgage Loan Seller; (vii) any obligation of the Master Servicer or any
Affiliate of the Master Servicer to cure a breach of a representation and
warranty with respect to a Mortgage Loan; and (viii) any debt the Master
Servicer or Special Servicer or any Affiliate of either has extended to any
Mortgagor or any Affiliate of such Mortgagor.
"Servicing Transfer Event": With respect to any Serviced Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Loan".
"ShopKo Portfolio Co-Lender Agreement": As defined in the Preliminary
Statement hereto.
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"ShopKo Portfolio Consent Period": The "Consent Period" under the
ShopKo Portfolio Co-Lender Agreement.
"ShopKo Portfolio Controlling Non-Trust Loan Noteholders": ShopKo
Portfolio Non-Trust Loan Noteholders representing more than 50% of the total
principal balance of all of the ShopKo Portfolio Non-Trust Loans or any
successor REO Loans with respect thereto.
"ShopKo Portfolio Controlling Party": The ShopKo Portfolio Directing
Lender or any representative thereof designated in accordance with the ShopKo
Portfolio Co-Lender Agreement.
"ShopKo Portfolio Directing Lender": The "Directing Lender" within the
meaning of the ShopKo Portfolio Co-Lender Agreement.
"ShopKo Portfolio Loan Combination": As defined in the Preliminary
Statement hereto.
"ShopKo Portfolio Loan Portion": As defined in Section 2.03.
"ShopKo Portfolio Major Action": Any of the actions described in
clauses (i) through (xiv) of Section 3.02(a).
"ShopKo Portfolio Majority Lenders": The "Majority Lenders" within the
meaning of the ShopKo Portfolio Co-Lender Agreement.
"ShopKo Portfolio Mortgage Loan": As defined in the Preliminary
Statement hereto.
"ShopKo Portfolio Mortgaged Property": As defined in the Preliminary
Statement hereto.
"ShopKo Portfolio Non-Trust Loan Noteholder": Any holder of a
promissory note evidencing a ShopKo Portfolio Non-Trust Loan.
"ShopKo Portfolio Non-Trust Loans": As defined in the Preliminary
Statement hereto.
"ShopKo Portfolio REO Property": The ShopKo Portfolio Mortgaged
Property, if it shall become an REO Property hereunder.
"ShopKo Portfolio Special Servicer": The party responsible for
performing the duties of Special Servicer hereunder with respect to the ShopKo
Portfolio Loan Combination or any related REO Property.
"Significant Obligor": (a) Any obligor (as defined in Item 1101(i) of
Regulation AB) or group of affiliated obligors on any Trust Mortgage Loan or
group of Trust Mortgage Loans that represent, as of the Closing Date, 10% or
more of the Mortgage Pool (by Cut-off Date Balance); or (b) any single Mortgaged
Property or group of Mortgaged Properties securing any Trust Mortgage Loan or
group of cross-collateralized and/or cross-defaulted Trust Mortgage Loans that
represent, as of the Closing Date, 10% or more of the Mortgage Pool (by Cut-off
Date Balance).
"Single Certificate": For purposes of Section 4.02, a hypothetical
Regular Certificate evidencing a $1,000 denomination.
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"Special Servicer": X.X. Xxxxxx Company, Inc., its successor in
interest, or any successor special servicer appointed as herein provided.
"Special Servicer Reportable Event": Any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for example,
a servicing agreement with a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, but only if the Special Servicer or any Servicing
Representative of the Special Servicer is a party to such agreement or has
entered into such agreement on behalf of the Trust;
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the Special
Servicer or any Servicing Representative of the Special Servicer is a party
to such agreement or has entered into such agreement on behalf of the
Trust;
(iii) the appointment of a receiver, fiscal agent or similar officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy Code or
in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a court
or governmental authority, but only if the subject Material Debtor is (A)
the Special Servicer, (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Specially
Serviced Mortgage Loan;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan;
(v) any resignation, removal, replacement or substitution of (A) the
Special Servicer or (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB;
(vi) any appointment of (A) a new Special Servicer or (B) any new
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB;
(vii) any nonpublic disclosure, by the Special Servicer or any
Servicing Representative of the Special Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required by this
Agreement) that is required to be disclosed by Regulation FD (17 C.F.R.
243.100 through 243.103);
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(viii) any other information of importance to Certificateholders
(determined by the Special Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the Special
Servicer has determined, in accordance with the Servicing Standard, could
have an adverse effect on payments to any Class of Certificateholders, and
(C) is directly related to a Specially Serviced Mortgage Loan;
(ix) the commencement or termination of, or any material developments
regarding, any legal proceedings pending against any Material Litigant, or
of which any property of a Material Litigant is the subject, or any threat
by a governmental authority to bring any such legal proceedings, that are
material to Certificateholders, but only if the Special Servicer is
controlling the subject litigation or if the subject Material Litigant is
(A) the Special Servicer, (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Specially
Serviced Mortgage Loan;
(x) the receipt by the Special Servicer or by any Servicing
Representative of the Special Servicer of any updated financial statements,
balance sheets, rent rolls or other financial information regarding any
Significant Obligor with respect to a Specially Serviced Mortgage Loan;
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Special
Servicer to the Trustee and the Depositor in accordance with Section
8.15(b), whether the Special Servicer has become an affiliate (as defined
in Rule 405 of the Securities Act) of any of (A) the Trust, (B) the
Depositor, (C) a Mortgage Loan Seller, (D) the Trustee, (E) the Master
Servicer, (F) any Servicing Representative of the Special Servicer that
constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation AB or
(G) any Significant Obligor;
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding contemplated by Item 1119(b) of Regulation AB between
BCRE, PNC or the Trust, on the one hand, and the Special Servicer or any
Servicing Representative of the Special Servicer, on the other hand; and
(xiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between BCRE, PNC or the Trust, on the one hand,
and the Special Servicer or any Servicing Representative of the Special
Servicer, on the other hand.
"Special Servicing Fee": With respect to each Specially Serviced Loan
and each REO Loan that relates to an REO Property, the fee designated as such
and payable to the Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Loan and each REO Loan that relates to an REO Property, 0.25% per annum.
"Specially Serviced Loan": Any Serviced Loan as to which any of the
following events have occurred:
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(a) the related Mortgagor shall have (i) failed to make when due any
Balloon Payment unless the Master Servicer has, on or prior to the due date
of such Balloon Payment, received written evidence (which the Master
Servicer is required to deliver to the Special Servicer pursuant to Section
3.19(c)) from an institutional lender of such lender's binding commitment
to refinance the subject Serviced Loan (acceptable to the Special Servicer
and the Controlling Class Representative) within 60 days after the due date
of such Balloon Payment and during the interim the related Mortgagor has
continued to make the Assumed Periodic Payment in effect prior to maturity
(provided that if such refinancing does not occur during such time
specified in the commitment, the subject Serviced Loan will immediately
become a Specially Serviced Loan), or (ii) failed to make when due any
Periodic Payment (other than a Balloon Payment) and such failure has
continued unremedied for 60 days; or
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the Controlling Class Representative
or, in the case of any Loan Combination, with the consent of the related
Loan Combination Controlling Party) shall have determined, in its good
faith reasonable judgment and in accordance with the Servicing Standard,
based on, among other things, communications with the related Mortgagor,
that a default in making a Periodic Payment (including a Balloon Payment)
or any other default under the applicable loan documents that would (with
respect to such other default) materially impair the value of the Mortgaged
Property as security for the subject Serviced Loan or otherwise would
materially adversely affect the interests of Certificateholders and would
continue unremedied beyond the applicable grace period under the terms of
the subject Serviced Loan (or, if no grace period is specified, for 60
days; provided that a default that would give rise to an acceleration right
without any grace period shall be deemed to have a grace period equal to
zero) is likely to occur and is likely to remain unremedied for at least 60
days; or
(c) there shall have occurred a default (other than as described in
clause (a) above) that the Master Servicer or Special Servicer shall have
determined, in its good faith and reasonable judgment and in accordance
with the Servicing Standard, materially impairs the value of the Mortgaged
Property as security for the subject Serviced Loan or otherwise materially
adversely affects the interests of Certificateholders and that continues
unremedied beyond the applicable grace period under the terms of the
subject Serviced Loan (or, if no grace period is specified, for 60 days;
provided that a default that gives rise to an acceleration right without
any grace period shall be deemed to have a grace period equal to zero);
provided, however, that, in the event the Special Servicer determines that
the related Mortgagor does not need to maintain terrorism insurance as
provided in Section 3.07(a), no default related to the failure to obtain
such insurance shall be deemed to be outstanding for purposes of this
clause (c); or
(d) 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 or 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,
shall have been entered against the related Mortgagor; provided that, if
such decree or order is discharged, dismissed or stayed within 60 days it
shall not be a Specially Serviced Loan (and no Special Servicing Fees shall
be payable); or
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(e) the related Mortgagor shall consent 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 Mortgagor or of or relating to all or substantially all of
its property; or
(f) the related Mortgagor shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided that a Serviced Loan will cease to be a Specially Serviced Loan when a
Liquidation Event has occurred with respect to such Serviced Loan, when the
related Mortgaged Property has become an REO Property or, so long as at such
time no circumstance identified in clauses (a) through (g) above exists that
would cause such Serviced Loan to continue to be characterized as a Specially
Serviced Loan, if and when:
(i) with respect to the circumstances described in clause (a) above,
the related Mortgagor has made three consecutive full and timely Periodic
Payments under the terms of the subject Serviced Loan (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20);
(ii) with respect to the circumstances described in clauses (b), (d),
(e) and (f) above, such circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer and in accordance with the
Servicing Standard, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c) above,
such default is cured; and
(iv) with respect to the circumstances described in clause (g) above,
such proceedings are terminated.
Notwithstanding the foregoing, during any time an entire Loan
Combination is serviced and administered pursuant to this Agreement, if a
Servicing Transfer Event exists with respect to one Serviced Loan in such Loan
Combination, it will also be considered to exist for the other Serviced Loan(s)
in such Loan Combination.
"Specially Serviced Mortgage Loan": A Mortgage Loan that is a
Specially Serviced Loan.
"Startup Day": With respect to each REMIC Pool, the day designated as
such in Section 10.01(c).
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"State and Local Taxes": Taxes imposed by the State of New York, by
the State in which the Mortgage Files are maintained, by any of the States in
which are located the Corporate Trust Office and/or the respective offices of
the Master Servicer and Special Servicer responsible for servicing and
administering the Serviced Loans and any REO Properties, and/or by any other
state or local taxing authorities as may, by notice to the Trustee, assert
jurisdiction over the trust fund or any portion thereof, or which, according to
an Opinion of Counsel addressed to the Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan or Non-Trust
Loan, the Due Date specified in the Mortgage Note (as in effect on the Closing
Date) on which the last payment of principal is due and payable under the terms
of the Mortgage Note (as in effect on the Closing Date), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan or Non-Trust Loan, as the case may be, granted
or agreed to by the Special Servicer pursuant to Section 3.20 and, in the case
of an ARD Mortgage Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan as of
any date of determination, an amount (which amount shall not be less than zero)
equal to (x) the Cut-off Date Balance of such Mortgage Loan (or, in the case of
a Qualified Substitute Mortgage Loan, the unpaid principal balance thereof after
application of all principal payments due thereon on or before the related Due
Date in the month of substitution, whether or not received), plus (y) any
Mortgage Deferred Interest added to the principal balance of such Mortgage Loan
prior to the end of the Collection Period for the then-most recent Distribution
Date coinciding with or preceding such date of determination, minus (z) the sum
of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-off Date or the related Due Date in the month
of substitution, as the case may be, to the extent received from the
Mortgagor or advanced by the Master Servicer, the Trustee or any Fiscal
Agent and distributed to Certificateholders on or before such date of
determination;
(ii) all Principal Prepayments received with respect to such Mortgage
Loan after the Cut-off Date or the related Due Date in the month of
substitution, as the case may be, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance Proceeds and Liquidation
Proceeds received with respect to such Mortgage Loan after the Cut-off Date
or the related Due Date in the month of substitution, as the case may be,
to the extent distributed to Certificateholders on or before such date of
determination;
(iv) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan prior to the end of the Collection Period for the
then-most recent Distribution Date coinciding with or preceding such date
of determination; and
(v) to the extent not otherwise included as part of the amount
described in clause (z)(iv) of this definition, any amount of reduction in
the outstanding principal balance of such Mortgage Loan resulting from a
Deficient Valuation that occurred prior to the end of the Collection Period
for the then-most recent Distribution Date coinciding with or preceding
such date of determination.
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With respect to any REO Mortgage Loan, as of any date of
determination, an amount equal to (x) the Stated Principal Balance of the
predecessor Mortgage Loan as of the date of the related REO Acquisition, minus
(y) the sum of:
(i) the principal portion of any P&I Advance made with respect to such
REO Mortgage Loan on or after the date of the related REO Acquisition, to
the extent distributed to Certificateholders on or before such date of
determination;
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Revenues received with respect to such REO Mortgage Loan,
to the extent distributed to Certificateholders on or before such date of
determination; and
(iii) the principal portion of any Realized Loss incurred in respect
of such REO Mortgage Loan prior to the end of the Collection Period for the
then-most recent Distribution Date coinciding with or preceding such date
of determination.
A Mortgage Loan or an REO Mortgage Loan shall be deemed to be part of
the Mortgage Pool and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders. For purposes of this
definition, payments or other collections of principal on or with respect to any
Mortgage Loan or REO Mortgage Loan shall be deemed distributed to
Certificateholders as of the first Distribution Date that such payments or other
collections of principal are (or, without regard to clause (i) of the definition
of "Principal Distribution Amount," would have been) included in the Principal
Distribution Amount. To the extent that principal from general collections on
the Mortgage Pool is used to reimburse, or pay interest on, Nonrecoverable
Advances pursuant to Section 3.05(a) hereof with respect to any particular
Mortgage Loan or REO Mortgage Loan, and such principal amount has not been
included as part of the Principal Distribution Amount, such principal amount
shall nonetheless continue to be deemed to be distributed for purposes of
calculating the Stated Principal Balance. Notwithstanding the foregoing, if any
Mortgage Loan is paid in full, or if any Mortgage Loan or REO Property is
liquidated or otherwise removed from the Trust Fund, commencing as of the first
Distribution Date following the Collection Period during which such event
occurred, the Stated Principal Balance of such Mortgage Loan or the related REO
Mortgage Loan will be zero.
With respect to any Non-Trust Loan or any successor REO Non-Trust Loan
with respect thereto on any date of determination, the Stated Principal Balance
shall equal the unpaid principal balance of such Non-Trust Loan or the deemed
unpaid principal balance of such successor REO Non-Trust Loan.
"Subject Securitization Transaction": The commercial mortgage
securitization transaction contemplated by this Agreement.
"Subsequent Exchange Act Reports": As defined in Section 8.16(a).
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
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"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 Serviced Loans as
provided in Section 3.22.
"Sub-Servicing Function Participant": Any Sub-Servicer,
sub-contractor, vendor, agent or other Person acting on behalf of a party
hereto, which Sub-Servicer, sub-contractor, vendor, agent or other Person is a
"party participating in the servicing function" (within the meaning of the
instructions to Item 1122 of Regulation AB) as regards the Subject
Securitization Transaction.
"Substitution Shortfall Amount": With respect to a substitution of
Mortgage Loans pursuant to any Mortgage Loan Purchase Agreement, an amount equal
to the excess, if any, of the Purchase Price of the Mortgage Loan being replaced
calculated as of the date of substitution over the Stated Principal Balance of
the related Qualified Substitute Mortgage Loan as of the date of substitution.
In the event that one or more Qualified Substitute Mortgage Loans are
substituted (at the same time) for one or more deleted Mortgage Loans, then the
Substitution Shortfall Amount shall be determined as provided in the preceding
sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan or
Mortgage Loans being replaced and the aggregate Stated Principal Balances of the
related Qualified Substitute Mortgage Loan or Mortgage Loans.
"Tax Administrator": The Trustee or any Tax Administrator appointed
pursuant to Section 8.14.
"Tax Matters Person": With respect to each REMIC Pool, the Person
designated as the "tax matters person" of such REMIC in the manner provided
under Treasury regulations section 1.860F-4(d) and Temporary Treasury
regulations section 301.6231(a)(7)-1T, which Person shall be the applicable
Plurality Class R Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service 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 on behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC Provisions, and the federal income tax return on Internal
Revenue Service Form 1041 to be filed on behalf of Grantor Trust Y due to its
classification as a grantor trust under the Grantor Trust Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the Internal Revenue
Service under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable State and Local Tax laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereunder.
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"Trust Fund": Collectively, all of the assets of Grantor Trust Y and
the respective REMIC Pools.
"Trustee Fee": With respect to each Mortgage Loan and REO Mortgage
Loan for any Distribution Date, an amount equal to the product of (a) the
Trustee Fee Rate, multiplied by (b) the Stated Principal Balance of such
Mortgage Loan or REO Mortgage Loan, as the case may be, outstanding immediately
following the prior Distribution Date (or, in the case of the initial
Distribution Date, as of the Closing Date), multiplied by (c) a fraction, the
numerator of which is either (i) 30, if such Mortgage Loan or REO Mortgage Loan,
as the case may be, accrues or is deemed to accrue interest on a 30/360 Basis,
or (ii) the number of days in the calendar month preceding the month in which
such Distribution Date occurs, if such Mortgage Loan or REO Mortgage Loan, as
the case may be, accrues or is deemed to accrue interest on an Actual/360 Basis,
and the denominator of which is 360.
"Trustee Fee Rate": 0.0009% per annum.
"Trustee": LaSalle Bank National Association, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Appointee": Any Fiscal Agent, Authenticating Agent,
Certificate Registrar, REMIC Administrator, Custodian, co-trustee or separate
trustee appointed or designated by the Trustee hereunder.
"Trustee Reportable Event": Any of the following events, conditions,
circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for example,
a servicing agreement with a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, but only if the Trustee, any Servicing Representative of the
Trustee or any Trustee Appointee is a party to such agreement or has
entered into such agreement on behalf of the Trust;
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the
Trustee, any Servicing Representative of the Trustee or any Trustee
Appointee is a party to such agreement or has entered into such agreement
on behalf of the Trust;
(iii) the appointment of a receiver, fiscal agent or similar officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy Code or
in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a court
or governmental authority, but only if the subject Material Debtor is (A)
the Trustee, (B) any Servicing Representative of the Trustee that
constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation AB,
(C) any Trustee Appointee, (D) any Enhancement/Support Provider or (E) the
Trust;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or
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jurisdiction over substantially all of the assets or business of such
Material Debtor, but only if the subject Material Debtor is (A) the
Trustee, (B) any Servicing Representative of the Trustee that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB, (C) any Trustee
Appointee, (D) any Enhancement/Support Provider or (E) the Trust;
(v) any event that has occurred hereunder that would materially alter
the payment priority or distribution of cash flows regarding the
Certificates;
(vi) any material modification to the rights of the Holders of any
Class of Certificates, including by reason of a modification to this
Agreement, a Mortgage Loan Purchase Agreement or any other constituent
instrument;
(vii) any material limitation or qualification of the rights evidenced
by any Class of Certificates by reason of the modification of any other
Class of Certificates;
(viii) any amendment to this Agreement pursuant to Section 11.01;
(ix) any resignation, removal, replacement or substitution of (A) the
Trustee, the Master Servicer or the Special Servicer or (B) any Servicing
Representative of the Trustee that constitutes a Servicer contemplated by
Item 1108(a)(2) of Regulation AB;
(x) any appointment of (A) a new Trustee, new Master Servicer or new
Special Servicer or (B) any new Servicing Representative of the Trustee
that constitutes a Servicer contemplated by Item 1108(a)(2) of Regulation
AB;
(xi) any termination of a material enhancement or support specified in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
that was previously applicable regarding one or more Classes of the
Certificates, which termination has occurred other than by expiration of
the contract on its stated termination date or as a result of all parties
completing their obligations under such agreement;
(xii) any addition of a material enhancement or support specified in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with respect to one or more Classes of the Certificates;
(xiii) any material amendment or modification of a material
enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB with respect to one or more
Classes of the Certificates;
(xiv) any material failure on the part of the Trustee to make on the
applicable Distribution Date any required monthly distributions to the
Holders of any Class of Certificates;
(xv) any nonpublic disclosure, by the Trustee, any Servicing
Representative of the Trustee or any Trustee Appointee, with respect to the
Subject Securitization Transaction that is required to be disclosed by
Regulation FD (17 C.F.R. 243.100 through 243.103);
(xvi) any other information of importance to Certificateholders that
is not otherwise required to be included in the Distribution Date Statement
or any other report to be delivered or
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otherwise made available to Certificateholders hereunder and that is
directly related to the obligations of the Trustee hereunder;
(xvii) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Trustee is controlling the subject litigation or if the subject Material
Litigant is (A) the Trustee, (B) any Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider or (E) the Trust;
(xviii) any material default in the payment of principal and interest
on, or any other material default with respect to, any Class of
Certificates;
(xix) the submission of any matter to a vote by Certificateholders;
(xx) the receipt by the Trustee or by any Servicing Representative or
other agent of the Trustee of any updated information regarding an
Enhancement/Support Provider with respect to any Class of Certificates that
is required pursuant to Item 1114(b)(2) or Item 1115(b) of Regulation AB;
(xxi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in an Exchange Act Report in accordance
with this Agreement, whether the Trustee has become an affiliate (as
defined in Rule 405 of the Securities Act) of any of (A) the Trust, (B) the
Depositor, (C) a Mortgage Loan Seller, (D) the Master Servicer, (E) the
Special Servicer, (F) any Servicing Representative of the Trustee that
constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation AB,
(G) any Trustee Appointee or (H) any Significant Obligor;
(xxii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding contemplated by Item 1119(b) of Regulation AB between
BCRE, PNC or the Trust, on the one hand, and the Trustee, any Trustee
Appointee or any Servicing Representative of the Trustee, on the other
hand; and
(xxiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between BCRE, PNC or the Trust, on the one hand,
and the Trustee, any Trustee Appointee or any Servicing Representative of
the Trustee, on the other hand.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed pursuant to the
Uniform Commercial Code, as in effect in any relevant jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest for any Distribution Date, one-twelfth of the product of (a) the annual
REMIC I Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, multiplied by (b) the related REMIC I Principal Balance
outstanding immediately prior to such Distribution Date. Uncertificated Accrued
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Interest shall be calculated on a 30/360 Basis and, with respect to any REMIC I
Regular Interest for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the sum of (i) the portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that is allocable to
such REMIC I Regular Interest in accordance with Section 4.04(e) and (ii) the
portion of any Mortgage Deferred Interest that is allocable to such REMIC I
Regular Interest on such Distribution Date in accordance with Section 4.04(c).
"Underwriter": Each of Citigroup Global Markets Inc., Deutsche Bank
Securities Inc., Banc of America Securities LLC, PNC Capital Markets LLC and
Barclays Capital Inc., and in each case, any successor in interest.
"United States Tax Person": A citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of the United States, any State thereof or the District of
Columbia unless in the case of a partnership, Treasury regulations are adopted
that provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States Tax Persons have
the authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996,
that are eligible to elect to be treated as United States Tax Persons).
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
"Unrestricted Servicer Reports": Each of the CMSA Delinquent Loan
Status Report, CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, CMSA Loan Level Reserve/LOC Report, CMSA Historical Liquidation Report,
CMSA REO Status Report and CMSA Advance Recovery Report and, from and after its
filing with the Commission, any item deemed to be an Unrestricted Servicer
Report in accordance with the definition of "Restricted Servicer Reports".
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Regular Certificates. Ninety-six percent (96%) of the Voting
Rights shall be allocated among the various Classes of the Principal Balance
Certificates in proportion to the respective Class Principal Balances of such
Classes of Certificates; provided that, solely for the purpose of determining
the respective Voting Rights of the various Classes of Principal Balance
Certificates, the aggregate Appraisal Reduction Amount allocated to the
respective Classes of the Principal Balance Certificates in accordance with
Section 4.04(d) shall be treated as Realized Losses with respect to the
calculation of the Certificate Principal Balances thereof; and provided,
further, that the aggregate Appraisal Reduction Amount shall not reduce the
Class Principal Balance of any Class for purposes of determining the Controlling
Class, the Controlling Class Representative or the Majority
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Controlling Class Certificateholder. Four percent (4%) in the aggregate of the
Voting Rights shall be allocated to the Class X Certificates. The Class Y and
Class R Certificates shall have no voting rights. Voting Rights allocated to a
Class of Certificateholders shall be allocated among such Certificateholders in
standard proportion to the Percentage Interests evidenced by their respective
Certificates. In addition, if either the Master Servicer or the Special Servicer
is the holder of any Certificate, neither of the Master Servicer or Special
Servicer, in its capacity as a Certificateholder, shall have Voting Rights with
respect to matters concerning compensation affecting the Master Servicer or the
Special Servicer.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective Net
Mortgage Pass-Through Rates applicable to the Mortgage Loans and any REO
Mortgage Loans for such Distribution Date, weighted on the basis of their
respective Stated Principal Balances immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Wimbledon Place Apartments Co-Lender Agreement": As defined in the
Preliminary Statement hereto.
"Wimbledon Place Apartments Loan Combination": As defined in the
Preliminary Statement hereto.
"Wimbledon Place Apartments Material Default": A "Material Default" as
defined in the Wimbledon Place Apartments Co-Lender Agreement.
"Wimbledon Place Apartments Mortgage Loan": As defined in the
Preliminary Statement hereto.
"Wimbledon Place Apartments Mortgaged Property": As defined in the
Preliminary Statement hereto.
"Wimbledon Place Apartments Non-Trust Loan": As defined in the
Preliminary Statement hereto.
"Wimbledon Place Apartments Non-Trust Loan Noteholder": The holder of
the promissory note for the Wimbledon Place Apartments Non-Trust Loan.
"Workout Fee": With respect to each Corrected Loan, the fee designated
as such and payable to the Special Servicer pursuant to the second paragraph of
Section 3.11(c).
"Workout Fee Rate": 1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan or Non-Trust Loan as the result of a Principal
Prepayment thereon, not otherwise due thereon in respect of principal or
interest, which have been calculated (based on scheduled payments on such
Mortgage Loan or Non-Trust Loan, as the case may be) to compensate the holder
for reinvestment losses based on the value of an interest rate index at or near
the time of prepayment. Any other prepayment premiums, penalties and fees not so
calculated will not be considered "Yield Maintenance Charges." In the event that
a Yield Maintenance Charge shall become due for any particular Mortgage Loan or
Non-Trust Loan, the Master Servicer shall be required to follow the terms and
provisions
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contained in the applicable Mortgage Note; provided, however, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in determining the discount rate or the reinvestment yield to be applied in
such calculation, the Master Servicer shall be required to use those U.S.
Treasuries having maturity dates most closely approximating the maturity of such
Serviced Loan. Accordingly if either no U.S. Treasury issue, or more than one
U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Serviced Loan or the
actual term remaining through the Maturity Date), the Master Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based on the bid price for such issue as published in The Wall Street Journal on
the date that is fourteen (14) days prior to the date that the Yield Maintenance
Charge shall become due and payable (or, if such bid price is not published on
that date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12X {(1+"BEY"/2)^1/6}-1) where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X {(1+ .055/2)^0.16667}-1) where
..055 is the decimal version of the percentage 5.5% and 0.16667 is the decimal
version of the exponential power. The MEY in the above calculation is 5.44%.
SECTION 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP as in effect from time to
time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision;
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration; and
(vii) for purposes of Section 3.13, Section 3.14 and Section
8.16, to the extent that the Master Servicer has an obligation to exercise
"reasonable efforts" or "commercially reasonable efforts" to cause a third
party to perform, the Master Servicer shall not
73
be required to bring any legal action against any such third party (to the
extent such party is or was a Designated Sub-Servicer) in connection with
such obligation.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a common law trust under the laws of the State of
New York, designated as "Citigroup Commercial Mortgage Trust 2006-C4", and does
hereby assign, sell, transfer, set over and otherwise convey to the Trustee, in
trust, without recourse, for the benefit of the Certificateholders (and for the
benefit of the other parties to this Agreement as their respective interests may
appear) all the right, title and interest of the Depositor, in, to and under (i)
the Mortgage Loans and all documents included in the related Mortgage Files and
Servicing Files, (ii) the rights of the Depositor under Sections 1, 2, 3, 8 and,
if applicable, 21 (and to the extent related to the foregoing, Sections 8
through 17 and 19) of each of the Mortgage Loan Purchase Agreements, (iii) the
rights of the Depositor under each Co-Lender Agreement and (iv) all other assets
included or to be included in the Trust Fund. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-off Date and, in the case of each Mortgage Loan that
is part of a Loan Combination, is subject to the provisions of the corresponding
Co-Lender Agreement. The Trustee, on behalf of the Trust, assumes the rights and
obligations of the holder of the Mortgage Note for each Combination Mortgage
Loan under the related Co-Lender Agreement; provided that the Master Servicer
and the Special Servicer shall, as further set forth in Article III, perform the
servicing obligations of the holder of the Mortgage Note for each Combination
Mortgage Loan under the related Co-Lender Agreement. The transfer of the
Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 11.07, is intended by the parties to
constitute a sale.
The Trust Fund shall constitute the sole assets of the Trust. Except
as expressly provided herein, the Trust may not issue or invest in additional
securities, borrow money or make loans to other Persons. The fiscal year end of
the Trust shall be December 31.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above the Depositor shall direct, and hereby represents and warrants
that it has directed, 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 Trustee or a Custodian appointed thereby
(with a copy to the Master Servicer and Special Servicer), as and when required
by the applicable Mortgage Loan Purchase Agreement, the Mortgage File for each
Mortgage Loan so assigned. None of the Trustee, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by any Mortgage
Loan Seller or the Depositor to comply with the document delivery requirements
of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File," with evidence of recording or
filing, as applicable, thereon, solely because of a delay caused by the public
recording office or filing office, as applicable, where such document or
instrument has been delivered for recordation or filing, as the case may be, the
delivery requirements of the related Mortgage Loan Purchase Agreement and
Section 2.01(b) shall be deemed to have been satisfied as to such non-delivered
document or instrument,
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and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File; provided that a photocopy of such non-delivered
document or instrument (certified by the applicable Mortgage Loan Seller or by
the title insurance company used by such Mortgage Loan Seller to effect
recording or filing to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof, with evidence of
recording or filing, as applicable, thereon, is delivered to the Trustee or such
Custodian within 120 days of 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 applicable Mortgage Loan Seller is, in good
faith, attempting to obtain from the appropriate county recorder's office or
filing office such original or photocopy). If the applicable Mortgage Loan
Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of
the documents and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and (viii) of the definition of "Mortgage File," with evidence of
recording or filing, as applicable, thereon, for any other reason, including,
without limitation, that such non-delivered document or instrument has been
lost, the delivery requirements of the applicable Mortgage Loan Purchase
Agreement and Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered document or instrument and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File; provided
that a photocopy of such non-delivered document or instrument (with evidence of
recording or filing, as applicable, thereon) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver in complete and, if applicable, recordable
form (except for any missing recording information and, if delivered in blank,
the name of the assignee) any one of the assignments in favor of the Trustee
referred to in clause (iv) or (v) of the definition of "Mortgage File," the
applicable Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and Section 2.01(b)
by delivering with respect to such Mortgage Loan on the Closing Date an omnibus
assignment of such Mortgage Loan; provided that all required original
assignments with respect to such Mortgage Loan in fully complete and, if
applicable, recordable form (except for any missing recording information and,
if delivered in blank, the name of the assignee) shall be delivered to the
Trustee or its Custodian within 120 days of the Closing Date (or within such
longer period as the Trustee in its reasonable discretion may permit).
With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the requirements of
the related Mortgage Loan Purchase Agreement and Section 2.01(b) for delivery of
such document as a part of the Mortgage File of each of the other Crossed Loans
in such Crossed Group.
(d) The Trustee shall, for a fee paid to the Trustee by the applicable
Mortgage Loan Seller(s) on the Closing Date as to each Mortgage Loan sold
thereby to the Depositor, promptly (and in any event, as to any Mortgage Loan,
within 90 days following the latest of (i) the Closing Date, (ii) the delivery
of all relevant related assignments and UCC Financing Statements to the Trustee,
and (iii) the date on which the Trustee receives, with respect to the original
recorded or filed documents relating to such assignments and UCC Financing
Statements, all necessary recording and filing information required for the
recording or filing of such assignments and UCC Financing Statements) complete
(if and to the extent necessary) and cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate and to
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the extent timely delivered to the Trustee in final, recordable form, each
assignment of Mortgage, assignment of Assignment of Leases and assignment of any
other recordable documents (to the extent the Trustee has actual knowledge that
such documents are to be recorded) relating to each such Mortgage Loan, in favor
of the Trustee referred to in clause (iv)(A), (B) and (C), respectively, of the
definition of "Mortgage File" and each assignment of a UCC Financing Statement
in favor of the Trustee and so delivered to the Trustee and referred to in
clause (viii) of the definition of "Mortgage File."
Notwithstanding the foregoing, the Depositor hereby represents and
warrants that with respect to the Mortgage Loans that are PNC Mortgage Loans,
PNC has covenanted in the related Mortgage Loan Purchase Agreement that it
shall, at its own cost and expense, retain or cause to be retained, a third
party that shall, as to each PNC Mortgage Loan, cause to be submitted, for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, each assignment of Mortgage,
assignment of Assignment of Leases and assignment of any other recordable
documents relating to each such PNC Mortgage Loan in favor of the Trustee
referred to in clause (iv)(A), (B) and (C), respectively, of the definition of
"Mortgage File" and each assignment of a UCC Financing Statement in favor of the
Trustee and referred to in clause (viii) of the definition of "Mortgage File".
Each such assignment of recordable documents shall reflect that the
recorded original should be returned by the public recording office to the
Trustee or its designee following recording, and each such UCC Financing
Statement assignment shall reflect that the file copy thereof should be returned
to the Trustee or its designee following filing; provided that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain
therefrom a certified copy of the recorded original, at the expense of the
related Mortgage Loan Seller. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Trustee shall direct the related Mortgage Loan Seller pursuant to the
applicable Mortgage Loan Purchase Agreement to promptly prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Trustee shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate. Upon request, the Trustee shall forward to
the Master Servicer a copy of each of the aforementioned recorded or filed
assignments to the extent that the Trustee has received a copy thereof and to
the extent not previously provided.
(e) All documents and records in the Servicing File in possession of
the Depositor or the Mortgage Loan Sellers (except draft documents,
attorney-client privileged communications and internal correspondence, credit
underwriting or due diligence analyses, credit committee briefs or memoranda or
other internal approval documents or data or internal worksheets, memoranda,
communications or evaluations and other underwriting analysis of the Mortgage
Loan Sellers) that relate to, and are necessary for the servicing and
administration of, the Mortgage Loans and that are not required to be a part of
a Mortgage File in accordance with the definition thereof (including any
original letters of credit), together with all Escrow Payments and Reserve
Accounts in the possession thereof that relate to the Mortgage Loans, shall be
delivered to the Master Servicer or such other Person as may be directed by the
Master Servicer (at the expense of the applicable Mortgage Loan Seller) within
ten (10) days (or, in the case of Escrow Payments and Reserve Accounts, two (2)
Business Days) after the Closing Date and shall be held by the Master Servicer
on behalf of the Trustee in trust for the benefit of the Certificateholders
(and, in the case of a Mortgage Loan that is part of a Loan Combination, on
behalf of the related Non-Trust Loan Noteholders); provided, however, the Master
Servicer shall have no
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responsibility for holding documents created or maintained by the Special
Servicer hereunder and not delivered to the Master Servicer. The Special
Servicer may request the Master Servicer to deliver a copy of the Servicing File
for any Mortgage Loan (other than a Specially Serviced Mortgage Loan) at the
expense of the Special Servicer.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall deliver to the Trustee and the Master
Servicer on or before the Closing Date and hereby represents and warrants that
it has delivered a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date.
(g) Under generally accepted accounting principles in the United
States, upon the sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, the Depositor shall
report: (i) its acquisition of the Mortgage Loans from the respective Mortgage
Loan Sellers, pursuant to the respective Mortgage Loan Purchase Agreements, as a
purchase of the Mortgage Loans from the respective Mortgage Loan Sellers; and
(ii) its transfer of the Mortgage Loans to the Trustee, pursuant to Section
2.01(a), as a sale of the Mortgage Loans to the Trustee. In connection with the
foregoing, the Depositor shall cause all of its records to reflect such
acquisition as a purchase and such transfer as a sale (in each case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to Section 2.01(a), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
SECTION 2.02 Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
provisos in the definition of "Mortgage File", the provisions of Section 2.01,
the further limitations on review provided for in Section 2.02(b), the fact that
as of the Closing Date, the Trustee has only reviewed the Mortgage File for the
presence of the Mortgage Notes described in clause (i) of the definition of
"Mortgage File", and the exceptions noted on the schedule of exceptions in the
form attached hereto as Schedule II, of (i) the Mortgage File delivered to it
for each Mortgage Loan and (ii) a copy of a fully executed counterpart of each
of the Mortgage Loan Purchase Agreements all in good faith and without notice of
any adverse claim, and declares that it or a Custodian on its behalf holds and
will hold such documents and the other documents received by it that constitute
portions of the Mortgage Files, and that it holds and will hold the Mortgage
Loans and other assets included in the Trust Fund, in trust for the exclusive
use and benefit of all present and future Certificateholders. The Trustee also
acknowledges receipt of the portion of the applicable Mortgage File relating to
each of the Non-Trust Loans and that, consistent with and subject to the related
Co-Lender Agreement, it holds and will hold such portion of such Mortgage File
in trust for the use and benefit of the related Non-Trust Loan Noteholder(s).
The Trustee hereby certifies to each of the Depositor, the Master Servicer, the
Special Servicer and each Mortgage Loan Seller that with respect to each
Mortgage Loan except as identified in the schedule of exceptions, which is in
the form attached hereto as Schedule II, each of the original executed Mortgage
Notes as described in clause (i) of the definition of Mortgage File is in its
possession. In addition, within 90 days after the Closing Date (and if any
exceptions are noted, again every 90 days thereafter until the second
anniversary of the Closing Date, and every 180 days thereafter until the fifth
anniversary of the Closing Date, and thereafter upon request by any party
hereto, any
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Mortgage Loan Seller or the Majority Controlling Class Certificateholder, the
Trustee or the Custodian on its behalf will review the Mortgage Files and the
Trustee will deliver an updated exception report to each of the Depositor, the
Master Servicer, the Special Servicer and each Mortgage Loan Seller (with a copy
to the Majority Controlling Class Certificateholder). By virtue of its delivery
of an updated exception report, the Trustee shall be deemed to certify that,
with respect to each Mortgage Loan listed in the Mortgage Loan Schedule, except
as specifically identified in the updated exception report, (i) without regard
to the proviso in the definition of "Mortgage File," all documents specified in
clauses (i), (ii), (iv)(A), (v) and (vii), and, to the extent provided in the
related Mortgage File and actually known by a Responsible Officer of the Trustee
to be required, clauses (iii), (iv)(B), (iv)(C), (vi), (viii) and (ix)(A) of the
definition of "Mortgage File" are in its possession, (ii) all documents
delivered or caused to be delivered by the applicable Mortgage Loan Seller
constituting the related Mortgage File have been reviewed by it and appear
regular on their face and appear to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule for such Mortgage Loan with
respect to the items specified in clauses (v) and (vi)(C) of the definition of
"Mortgage Loan Schedule" is correct. Further, with respect to the documents
described in clause (viii) of the definition of Mortgage File, the Trustee may
assume, for purposes of the certification delivered in this Section 2.02(a) that
the related Mortgage File should include one state level UCC Financing Statement
filing in the state of incorporation of the Mortgagor (or with respect to any
Mortgage Loan that has two or more Mortgagors, in the state of incorporation of
each Mortgagor); provided, however, that to the extent the Trustee has actual
knowledge or is notified of any fixture or real property UCC Financing
Statements filed in the county of the state where the related Mortgaged Property
is located, the Trustee (or, if applicable, the third-party contractor hired by
the Mortgage Loan Seller as contemplated by Section 2.01(d)) shall file an
assignment to the Trust Fund with respect to such UCC Financing Statement in the
appropriate county recording office under the UCC at the expense of the related
Mortgage Loan Seller. The assignments of the UCC Financing Statements to be
assigned to the Trust Fund will be delivered by the related Mortgage Loan Seller
to the Trustee (or, if applicable, the third-party contractor hired by the
Mortgage Loan Seller as contemplated by Section 2.01(d)) on the new national
forms, in form suitable for filing or recording, as applicable, and completed
pursuant to Revised Article IX of the UCC. The Trustee (or, if applicable, the
third-party contractor hired by the Mortgage Loan Seller as contemplated by
Section 2.01(d)) will submit such UCC Financing Statements for filing in the
state of incorporation of the related Mortgagor or the recording office of each
county where the related Mortgaged Property is located, as applicable, as so
indicated on the documents provided.
(b) None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
(c) The Trustee, directly or through a Custodian retained by it,
shall: (i) provide for the safekeeping and preservation of the Mortgage Files
with respect to the Mortgage Loans; (ii) segregate such Mortgage Files from its
own assets and the assets retained by it for others; (iii) maintain such
Mortgage Files in secure and fire resistant facilities in compliance with
customary industry standards; (iv) maintain disaster recovery protocols to
ensure the preservation of such Mortgage Files in the event of force majeure;
and (v) track and monitor the receipt and movement internally and externally of
such Mortgage Files and any release and reinstatement thereof.
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SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.
(a) If any party hereto discovers or receives notice that any document
or documents constituting a part of a Mortgage File has not been properly
executed, is missing (beyond the time period required for its delivery
hereunder), contains information that does not conform in any material respect
with the corresponding information set forth in the Mortgage Loan Schedule, or
does not appear to be regular on its face (each, a "Document Defect"), or
discovers or receives notice of a breach of any representation or warranty
relating to any Mortgage Loan set forth in the applicable Mortgage Loan Purchase
Agreement (a "Breach"), the party discovering such Document Defect or Breach
shall give written notice (which notice, in respect of any obligation of the
Trustee to provide notice of a Document Defect, shall be deemed given by the
delivery of the certificate as required by Section 2.02(a)) to the other parties
hereto and the Majority Controlling Class Certificateholder and to the Rating
Agencies of such Document Defect or Breach. Promptly upon becoming aware of any
Document Defect or Breach (including through such written notice provided by any
party hereto or the Majority Controlling Class Certificateholder as provided
above), if any party hereto determines that such Document Defect or Breach
materially and adversely affects the value of the affected Mortgage Loan or the
interests of the Certificateholders therein, then such party shall notify the
Master Servicer of such determination, and promptly after receipt of such
notice, the Master Servicer shall, to the extent that it is entitled to do so
under the related Mortgage Loan Purchase Agreement, request in writing (with a
copy to the other parties hereto, the Majority Controlling Class
Certificateholder, the Rating Agencies and the Controlling Class Representative,
if different from the Majority Controlling Class Certificateholder) that the
applicable Mortgage Loan Seller, not later than 90 days from receipt of such
written request (or, in the case of a Document Defect or Breach relating to a
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days after any party to this Agreement discovers
such Document Defect or Breach, provided that the Mortgage Loan Seller receives
such notice in a timely manner) (i) cure such Document Defect or Breach, as the
case may be, in accordance with Section 3 of the applicable Mortgage Loan
Purchase Agreement, (ii) repurchase the affected Mortgage Loan in accordance
with Section 3 of the related Mortgage Loan Purchase Agreement, or (iii) within
two (2) years of the Closing Date, substitute a Qualified Substitute Mortgage
Loan for such affected Mortgage Loan and pay the Master Servicer for deposit
into the Collection Account any Substitution Shortfall Amount in connection
therewith in accordance with Section 3 of the applicable Mortgage Loan Purchase
Agreement; provided, however, that if such Document Defect or Breach is capable
of being cured but not within such 90-day period, such Document Defect or Breach
does not relate to the Mortgage Loan not being treated as a "qualified mortgage"
within the meaning of the REMIC Provisions, and the applicable Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90-day period, the applicable Mortgage Loan Seller
shall have an additional 90 days to complete such cure (or, failing such cure,
to repurchase or substitute for the related Mortgage Loan); and provided,
further, with respect to such additional 90-day period the applicable Mortgage
Loan Seller shall have delivered an Officer's Certificate to the Trustee setting
forth what actions the applicable Mortgage Loan Seller is pursuing in connection
with the cure thereof and stating that the applicable Mortgage Loan Seller
anticipates such Document Defect or Breach will be cured within the additional
90-day period; and provided, further, that if the cure of any Document Defect or
Breach would require an expenditure on the part of the applicable Mortgage Loan
Seller in excess of $10,000, then such Mortgage Loan Seller may, at its option,
within the time period provided above, elect to purchase or replace the affected
Mortgage Loan in accordance with Section 3 of the related Mortgage Loan Purchase
Agreement without attempting to cure such Document Defect or
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Breach, as the case may be. For a period of two (2) years from the Closing Date,
so long as there remains any Mortgage File as to which there is any uncured
Document Defect and so long as the applicable Mortgage Loan Seller shall provide
the Officer's Certificate pursuant to Section 3 of the applicable Mortgage Loan
Purchase Agreement, the Trustee shall on a quarterly basis prepare and deliver
to the other parties a written report as to the status of such uncured Document
Defects as provided in Section 2.03(a). If the affected Mortgage Loan is to be
repurchased or substituted, the Master Servicer shall designate the Collection
Account as the account to which funds in the amount of the Purchase Price or the
Substitution Shortfall Amount, as applicable, are to be wired. Any such
repurchase or substitution of a Mortgage Loan shall be on a whole loan,
servicing released basis.
If (i) any Mortgage Loan is required to be repurchased or substituted
for in the manner described in the immediately preceding paragraph, (ii) such
Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or
Breach does not constitute a Document Defect or Breach, as the case may be, as
to any other Crossed Loan in such Crossed Group (without regard to this
paragraph), then the applicable Document Defect or Breach, as the case may be,
will be deemed to constitute a Document Defect or Breach, as the case may be, as
to the other Crossed Loan(s) in the related Crossed Group for purposes of this
paragraph, and the related Mortgage Loan Seller will be required to repurchase
or substitute for such other Crossed Loan(s) in the related Crossed Group as
provided in the immediately preceding paragraph, unless (x) such other Crossed
Loan(s) satisfy the Crossed Loan Repurchase Criteria, (y) the related Mortgage
Loan Seller, at its expense, shall have furnished the Trustee with an Opinion of
Counsel that the repurchase of or substitution for just the actually affected
Crossed Loan, including, without limitation, any modification relating to such
repurchase or substitution, shall not cause an Adverse REMIC Event, and (z) the
repurchase of or substitution for just the actually affected Crossed Loan shall
satisfy all other criteria for repurchase or substitution, as applicable, of
Mortgage Loans set forth herein. If the conditions set forth in clauses (x), (y)
and (z) of the prior sentence are satisfied, then the Mortgage Loan Seller may
elect either to repurchase or substitute for only the affected Crossed Loan as
to which the related Document Defect or Breach exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. Any
reserve or other cash collateral or letters of credit securing the Crossed Loans
shall be allocated between such Mortgage Loans in accordance with the Mortgage
Loan documents or otherwise on a pro rata basis. Except as otherwise provided in
Section 3(d) of each Mortgage Loan Purchase Agreement, all other terms of the
Mortgage Loans shall remain in full force and effect without any modification
thereof.
With respect to any Crossed Loan, to the extent that the applicable
Mortgage Loan Seller is required to repurchase or substitute for such Mortgage
Loan in the manner prescribed in this Section 2.03(a) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Special Servicer (on behalf of the
Trust) will, as set forth in the related Mortgage Loan Purchase Agreement,
forbear from enforcing any remedies against the other's Primary Collateral but
each will be permitted to exercise remedies against the Primary Collateral
securing its respective Mortgage Loans, including with respect to the Trustee,
the Primary Collateral securing Mortgage Loans still held by the Trustee, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral.
Notwithstanding the foregoing discussion, if any Mortgage Loan that is
secured by multiple Mortgaged Properties is otherwise required to be repurchased
or substituted for as contemplated by this Section 2.03, as a result of a
Document Defect or Breach with respect to one or more such Mortgaged Properties,
the related Mortgage Loan Seller will not be required to effect a repurchase or
substitution of the subject Mortgage Loan if:
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(i) the affected Mortgaged Properties may be released pursuant to
the terms of any partial release provisions in the related loan documents
and such Mortgaged Properties are, in fact, released, and to the extent not
covered by the applicable release price required under the related loan
documents, the related Mortgage Loan Seller pays (or causes to be paid) any
additional amounts necessary to cover all reasonable out-of-pocket expenses
reasonably incurred by the Master Servicer, the Special Servicer, the
Trustee or the Trust Fund in connection with such release;
(ii) the remaining Mortgaged Properties and any replacement
Mortgaged Property(ies) satisfy the property-specific requirements, if any,
set forth in the related loan documents and the applicable Mortgage Loan
Seller provides an opinion of counsel to the effect that such release would
not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on prohibited transactions
or contributions after the Startup Day of either REMIC I or REMIC II under
the Code; and
(iii) the related Mortgage Loan Seller obtains written
confirmation from each Rating Agency that the release will not result in a
qualification, downgrade or withdrawal of any of the then-current ratings
of the Certificates.
(b) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a Request for
Release (in the form of Exhibit D-1 attached hereto) of a Servicing Officer of
the Master Servicer certifying as to the receipt of the applicable Purchase
Price(s) in the Collection Account (in the case of any such repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the Collection
Account and upon the delivery of the Mortgage File(s) and the Servicing File(s)
for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer, respectively (in the case of any such substitution), (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it, in each case without recourse, representation or warranty, as
shall be necessary to vest in the applicable Mortgage Loan Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or deleted Mortgage Loan,
as applicable, being released pursuant to this Section 2.03, (ii) the Trustee,
the Custodian, the Master Servicer, and the Special Servicer shall each tender
to the applicable Mortgage Loan Seller, upon delivery to each of them of a
receipt executed by the applicable Mortgage Loan Seller, all portions of the
Mortgage File, the Servicing File and other documents pertaining to each such
Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special
Servicer shall release to the applicable Mortgage Loan Seller any Escrow
Payments and Reserve Funds held by it in respect of such repurchased or deleted
Mortgage Loan; provided that such tender by the Trustee or the Custodian shall
be conditioned upon its receipt from the Master Servicer or the Special Servicer
of a Request for Release. Thereafter, the Trustee, the Custodian, the Master
Servicer and the Special Servicer shall have no further responsibility with
regard to the related repurchased Mortgage Loan(s) or deleted Mortgage Loan(s),
as applicable, and the related Mortgage File(s) and Servicing File(s). The
Master Servicer shall, and is hereby authorized and empowered by the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03, and the Trustee shall execute any
powers of attorney that are prepared and delivered to the Trustee by the Master
Servicer and are necessary to permit the Master Servicer to do so. The Master
Servicer shall indemnify the Trustee for any reasonable costs, fees, liabilities
and expenses incurred by the Trustee in connection with the negligent or willful
misuse by the Master Servicer of such powers of attorney. At the time a
substitution is made, the related Mortgage Loan Purchase Agreement will provide
that the Mortgage Loan Seller shall deliver the related
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Mortgage File to the Trustee and certify that the substitute Mortgage Loan is a
Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or Loans
may be made in any calendar month after the Determination Date for such month.
Periodic Payments due with respect to any Qualified Substitute Mortgage Loan
after the related Due Date in the month of substitution, or received with
respect to any replaced Mortgage Loan on or prior to the related date of
substitution, shall be part of the Trust Fund. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related Due
Date in the month of substitution, or received with respect to any replaced
Mortgage Loan after the related date of substitution, shall not be part of the
Trust Fund and will (to the extent received by the Master Servicer) be remitted
by the Master Servicer to the applicable Mortgage Loan Seller promptly following
receipt. Periodic payments received with respect to any repurchased Mortgage
Loan on or prior to the related date of repurchase by the applicable Mortgage
Loan Seller shall be part of the Trust Fund, and Periodic Payments received with
respect to any repurchased Mortgage Loan after the related date of repurchase by
the applicable Mortgage Loan Seller shall not be part of the Trust Fund and will
(to the extent received by the Master Servicer) be remitted by the Master
Servicer to the applicable Mortgage Loan Seller promptly following receipt.
(d) Each Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Sellers under
Section 3 of the applicable Mortgage Loan Purchase Agreement.
(f) Notwithstanding anything to the contrary contained in this
Agreement, for purposes of the remedies available to the Certificateholders, or
the Trustee on behalf of the Certificateholders, respecting any Document Defect
or Breach with respect to the ShopKo Portfolio Mortgage Loan, the parties hereto
acknowledge and agree that: (i) the Mortgage Note for the ShopKo Portfolio
Mortgage Loan consists of two (2) separate promissory notes of equal size; (ii)
one of those two (2) promissory notes was transferred to the Depositor by
Citigroup and the other of those two (2) promissory notes was transferred to the
Depositor by BCRE; (iii) for purposes of this Section 2.03, the respective
portions of the ShopKo Portfolio Mortgage Loan that are evidenced by those two
(2) promissory notes (each, a "ShopKo Portfolio Loan Portion") shall be deemed
to constitute separate Mortgage Loans; (iv) if the ShopKo Portfolio Mortgage
Loan is required to be repurchased or replaced as contemplated by this Section
2.03, then each of Citigroup and BCRE shall be responsible to repurchase or
replace only the ShopKo Portfolio Loan Portion that is evidenced by the
particular promissory note transferred by the subject Mortgage Loan Seller to
the Depositor, and neither Citigroup nor BCRE shall have any responsibility for
the ShopKo Portfolio Loan Portion that is evidenced by the particular promissory
note transferred by the other such Mortgage Loan Seller to the Depositor; and
(v) the Purchase Price for each ShopKo Portfolio Loan Portion shall equal
one-half (1/2) of the Purchase Price for the entire ShopKo Portfolio Mortgage
Loan.
(g) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
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related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(g) shall be junior, subject and subordinate to the
rights of the Trustee, the Trust Fund, the Master Servicer and the Special
Servicer to recover amounts owed by the related Mortgagor under the terms of
such Mortgage Loan, including, without limitation, the rights to recover
unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the Trust
Fund, the Master Servicer or the Special Servicer allocable to such Mortgage
Loan. The Master Servicer or, with respect to a Specially Serviced Loan, the
Special Servicer, shall use reasonable efforts to recover such expenses for such
Mortgage Loan Seller to the extent consistent with the Servicing Standard, but
taking into account the subordinate nature of the reimbursement to the Mortgage
Loan Seller; provided, however, that the applicable Master Servicer or, with
respect to a Specially Serviced Loan, the Special Servicer, determines in
accordance with the Servicing Standard that such actions by it will not impair
the applicable Master Servicer's and/or the Special Servicer's collection or
recovery of principal, interest and other sums due with respect to the related
Mortgage Loan which would otherwise be payable to the applicable Master
Servicer, the Special Servicer, the Trustee and/or the Certificateholders
pursuant to the terms of this Agreement; and provided, further, that the
applicable Master Servicer or, with respect to a Specially Serviced Loan, the
Special Servicer, may waive the collection of amounts due on behalf of the
Mortgage Loan Seller in its sole discretion in accordance with the Servicing
Standard.
SECTION 2.04 Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, as of the Closing Date, 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 execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate of
incorporation or bylaws or 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 instrument to
which it is a party or which is applicable to it or any of its assets;
(iii) the Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) this Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) the Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not
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constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Depositor's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor;
(vi) the transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction;
(vii) no litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor;
(viii) the Depositor is not transferring the Mortgage Loans to
the Trustee with any intent to hinder, delay or defraud its present or
future creditors;
(ix) the Depositor has been solvent at all relevant times prior
to, and will not be rendered insolvent by, its transfer of the Mortgage
Loans to the Trustee pursuant to Section 2.01(a);
(x) after giving effect to its transfer of the Mortgage Loans to
the Trustee pursuant to Section 2.01(a), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and obligations,
including contingent and unliquidated debts and obligations of the
Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business;
(xi) the Depositor does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature;
(xii) no proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated;
(xiii) except for any actions that are the express responsibility
of another party hereunder or under the Mortgage Loan Purchase Agreements,
and further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of its
interests in the Mortgage Loans to the Trustee;
(xiv) immediately prior to the transfer of the Mortgage Loans to
the Trustee pursuant to Section 2.01(a) (and assuming that the Mortgage
Loan Sellers transferred to the Depositor good and marketable title to
their respective Mortgage Loans, free and clear of all liens, claims,
encumbrances and other interests), (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full
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right and authority to sell, assign and transfer the Mortgage Loans
(subject to any third-party servicing rights pertaining thereto); and
(xv) the Depositor is transferring the Mortgage Loans to the
Trust Fund free and clear of any liens, pledges, charges and security
interests created by or through the Depositor.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other parties.
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC I, REMIC II and Grantor Trust Y by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests and the other rights and property comprising REMIC II to the Trustee
for the benefit of the Holders of the Class R Certificates, insofar as such
Certificates represent the sole class of residual interests in REMIC II, and the
Holders of the Regular Certificates. The Trustee acknowledges the assignment to
it of the respective assets, rights and other property comprising the REMIC
Pools and Grantor Trust Y, and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of:
(i) in the case of the REMIC Pools, the Regular Certificates and the Class R
Certificates; and (ii) in the case of Grantor Trust Y, the Class Y Certificates.
SECTION 2.06 Issuance of REMIC I Interests.
Concurrently with the assignment to the Trustee of the Mortgage Loans
(exclusive of any related Additional Interest), and in exchange therefor, the
Trustee acknowledges the issuance of the REMIC I Regular Interests, and the sole
class of residual interests in REMIC I (which will be evidenced by the Class R
Certificates), to or upon the order of the Depositor.
SECTION 2.07 Execution, Authentication and Delivery of REMIC II
Certificates.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests, and in exchange therefor, and pursuant to the written request of the
Depositor, executed by an affiliate of the Depositor, the Trustee, as
Certificate Registrar, has executed, and the Trustee, as Authenticating Agent,
has authenticated and delivered to or upon the order of the Depositor, the REMIC
II Certificates in authorized denominations, evidencing the entire beneficial
ownership of REMIC II. The rights of the holders of the respective Classes of
REMIC II Certificates to receive distributions from the proceeds of REMIC II in
respect of their REMIC II Certificates, and all ownership interests evidenced by
the respective Classes of REMIC II Certificates in such distributions, shall be
as set forth in this Agreement. The Class R Certificates will represent the sole
class of residual interest in REMIC II.
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SECTION 2.08 Execution, Authentication and Delivery of Class Y.
Concurrently with the assignment to the Trustee of the Class Y Grantor
Trust Assets, and in exchange therefor, the Trustee, pursuant to the written
request of the Depositor executed by an officer of the Depositor, has executed,
as Certificate Registrar, authenticated, as Authenticating Agent, and delivered
to or upon the order of the Depositor, the Class Y Certificates.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Serviced Loans.
(a) Each of the Master Servicer and the Special Servicer shall service
and administer the Serviced Loans that each is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders (or, in the case of any Loan Combination, for the
benefit of the Certificateholders and the related Non-Trust Loan Noteholder(s),
taking into consideration, in the case of the Wimbledon Place Apartments Loan
Combination, the subordination of the Wimbledon Place Apartments Non-Trust Loan
as set forth in the related Co-Lender Agreement), in accordance with any and all
applicable laws, the terms of this Agreement, the terms of the respective
Serviced Loans and any and all intercreditor, co-lender and similar agreements
and, to the extent consistent with the foregoing, in accordance with the
Servicing Standard. With respect to each Loan Combination, in the event of a
conflict between this Agreement and the related Co-Lender Agreement, such
Co-Lender Agreement shall control; provided, however, that in no event shall the
Master Servicer or the Special Servicer take any action or omit to take any
action in accordance with the terms of any Co-Lender Agreement that would cause
such servicer to violate the Servicing Standard, applicable law, the Grantor
Trust Provisions or the REMIC Provisions. Without limiting the foregoing, and
subject to Section 3.21, (i) the Master Servicer shall service and administer
all Serviced Loans that are not Specially Serviced Loans, and (ii) the Special
Servicer shall service and administer each Specially Serviced Loan and REO
Property and shall render such services with respect to all Serviced Loans and
REO Properties as are specifically provided for herein; provided that the Master
Servicer shall continue to receive payments, make all calculations, and prepare,
or cause to be prepared, all reports required hereunder with respect to the
Specially Serviced Loans, except for the reports specified herein as prepared by
the Special Servicer, as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and any related REO Loans), as if no REO
Acquisition had occurred, and to render such incidental services with respect to
such Specially Serviced Loans and REO Properties as are specifically provided
for herein; provided further, however, that the Master Servicer shall not be
liable for its failure to comply with such duties insofar as such failure
results from a failure by the Special Servicer to provide sufficient information
to the Master Servicer to comply with such duties or failure by the Special
Servicer to otherwise comply with its obligations hereunder. All references
herein to the respective duties of the Master Servicer and the Special Servicer,
and to the areas in which they may exercise discretion, shall be subject to
Section 3.21.
(b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the
Master Servicer and the Special Servicer each shall have full power and
authority, acting alone (or, pursuant to Section 3.22, through one or more
Sub-Servicers), to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Serviced
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee and, pursuant to the any Co-Lender Agreement, by the related
Non-Trust Loan Noteholder(s), to execute and deliver, on behalf of the
Certificateholders, the Trustee and each such Non-Trust Loan Noteholder or any
of them, (i) any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien created by any Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and related collateral,
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(ii) in accordance with the Servicing Standard and subject to Section 3.20,
Section 6.11 and Section 6.12, any and all modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File, (iii) any and all instruments of satisfaction or cancellation, or of
partial or full release, discharge, or assignment, and all other comparable
instruments and (iv) pledge agreements and other defeasance documents in
connection with a defeasance contemplated pursuant to Section 3.20(g). Subject
to Section 3.10, the Trustee shall, at the written request of the Master
Servicer or the Special Servicer, promptly execute any limited powers of
attorney and other documents furnished by the Master Servicer or the Special
Servicer that are necessary or appropriate to enable them to carry out their
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any misuse of any such power of attorney by
the Master Servicer or the Special Servicer. Notwithstanding anything contained
herein to the contrary, neither the Master Servicer nor the Special Servicer
shall, without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan,
solely under the related Non-Trust Loan Noteholder's name) without indicating
the Master Servicer's or Special Servicer's, as applicable, representative
capacity; or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be registered to do business in any state.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venture, partner or
agent. Unless the same Person acts as both Master Servicer and Special Servicer,
the Master Servicer shall not be responsible for the actions of or failure to
act by the Special Servicer and the Special Servicer shall not be responsible
for the actions of or the failure to act by the Master Servicer.
(d) With respect to any Loan Combination, if at any time neither the
related Combination Mortgage Loan nor any interest in any related REO Property
is part of the Trust Fund, the Master Servicer and the Special Servicer shall,
upon request of the holder of the Mortgage Note for the related Combination
Mortgage Loan, continue to service and administer such Loan Combination or any
related REO Property as and to the extent contemplated by the related Co-Lender
Agreement.
SECTION 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments required under the terms and provisions of the Serviced Loans it is
obligated to service hereunder and shall, to the extent such procedures shall be
consistent with this Agreement, follow such collection procedures in accordance
with the Servicing Standard; provided, however, nothing herein shall be
construed as an express or implied guarantee by the Master Servicer or the
Special Servicer of collectability; and provided, further, that with respect to
the ARD Mortgage Loans, so long as the related Mortgagor is in compliance with
each provision of the related Mortgage Loan documents, the Master Servicer and
Special Servicer (including the Special Servicer in its capacity as a
Certificateholder) shall not take any enforcement action with respect to the
failure of the related Mortgagor to make any payment of Additional Interest or
principal in excess of the principal component of the constant Periodic Payment,
other than requests for collection, until the maturity date of the related
Mortgage Loan (provided that the Master Servicer or Special Servicer, as the
case may be, may take action to enforce the Trust Fund's right to apply excess
cash flow to principal in accordance with the terms of the Mortgage Loan
documents). Consistent with the foregoing and subject to Section 3.20, the
Special Servicer, with regard to a Specially Serviced Loan,
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or the Master Servicer, with regard to a Serviced Loan that is not a Specially
Serviced Loan, may waive any Penalty Interest or late payment charge in
connection with any payment on a Serviced Loan.
All amounts collected in respect of any Serviced Loan in the form of
payments from Mortgagors, Liquidation Proceeds (insofar as such Liquidation
Proceeds are of the nature described in clauses (i) through (iii) of the
definition thereof) or Insurance Proceeds shall be applied to either amounts due
and owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note, loan agreement (if any) and
Mortgage (and, with respect to any Loan Combination, the provisions of the
related Co-Lender Agreement) or, if required pursuant to the express provisions
of the related Mortgage (including as such may be modified), or as determined by
the Master Servicer or Special Servicer in accordance with the Servicing
Standard, to the repair or restoration of the related Mortgaged Property, and,
with respect to each Serviced Loan that is a Mortgage Loan, in the absence of
such express provisions, shall be applied for purposes of this Agreement: first,
as a recovery of any related and unreimbursed Advances; second, as a recovery of
Nonrecoverable Advances (including interest on such Nonrecoverable Advance) that
were paid from collections on the other Mortgage Loans and/or REO Mortgage Loans
and resulted in principal distributed to the Certificateholders being reduced
pursuant to Section 3.05(a) hereof; third, as a recovery of accrued and unpaid
interest at the related Mortgage Rate on such Mortgage Loan, to the extent such
amounts have not been previously advanced, and exclusive of any portion thereof
that constitutes Additional Interest; fourth, as a recovery of principal of such
Mortgage Loan then due and owing, to the extent such amounts have not been
previously advanced, including, without limitation, by reason of acceleration of
the Mortgage Loan following a default thereunder; fifth, in accordance with the
normal servicing practices of the Master Servicer, as a recovery of any other
amounts then due and owing under such Mortgage Loan (other than Additional
Interest), including, without limitation, Prepayment Premiums, Yield Maintenance
Charges and Penalty Interest; sixth, as a recovery of any remaining principal of
such Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and seventh, with respect to any ARD Mortgage Loan after its
Anticipated Repayment Date, as a recovery of any unpaid Additional Interest. All
amounts collected on any Mortgage Loan in the form of Liquidation Proceeds of
the nature described in clauses (iv) through (viii) of the definition thereof
and Substitution Shortfall Amounts shall be deemed to be applied: first, as a
recovery of any related and unreimbursed Advances; second, as a recovery of
accrued and unpaid interest at the related Mortgage Rate on such Mortgage Loan
to but not including the Due Date in the Collection Period of receipt, to the
extent such amounts have not been previously advanced, and exclusive of any
portion thereof that constitutes Additional Interest; third, as a recovery of
principal, to the extent such amounts have not been previously advanced, of such
Mortgage Loan to the extent of its entire unpaid principal balance; and fourth,
with respect to any ARD Mortgage Loan after its Anticipated Repayment Date, as a
recovery of any unpaid Additional Interest. No such amounts shall be applied to
the items constituting additional servicing compensation as described in the
first sentence of either Section 3.11(b) or 3.11(d) unless and until all
principal and interest then due and payable on such Mortgage Loan has been
collected. Amounts collected on any REO Mortgage Loan or REO Non-Trust Loan
shall be deemed to be applied in accordance with the respective definitions
thereof. The provisions of this paragraph with respect to the application of
amounts collected on any Mortgage Loan shall not alter in any way the right of
the Master Servicer, the Special Servicer or any other Person to receive
payments from the Collection Account as set forth in Section 3.05(a) or from a
Loan Combination Custodial Account as set forth in Section 3.05(e) from amounts
so applied.
(b) Within 60 days after the later of (i) the Closing Date and (ii)
the Master Servicer's receipt of the applicable letter of credit, the Master
Servicer shall notify each provider of a letter of
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credit for each Mortgage Loan identified as having a letter of credit on the
Mortgage Loan Schedule, that the Master Servicer or the Special Servicer on
behalf of the Trustee for the benefit of the Certificateholders shall be the
beneficiary under each such letter of credit. If a draw upon a letter of credit
is needed before its transfer to the Trust Fund can be completed, the applicable
Mortgage Loan Seller shall draw upon such letter of credit for the benefit of
the Trust pursuant to written instructions from the Master Servicer.
(c) In the event that the Master Servicer or Special Servicer receives
Additional Interest in any Collection Period, or receives notice from the
related Mortgagor that the Master Servicer or Special Servicer will be receiving
Additional Interest in any Collection Period, the Master Servicer or Special
Servicer, as applicable, will promptly notify the Trustee. Subject to the
provisions of Section 3.02(a) hereof, none of the Master Servicer, the Trustee
nor the Special Servicer shall be responsible for any such Additional Interest
not collected after notice from the related Mortgagor.
(d) With respect to any Serviced Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Serviced
Loan documents, the Master Servicer shall, to the extent consistent with the
Servicing Standard, hold such escrows, letters of credit and proceeds thereof as
additional collateral and not apply such items to reduce the principal balance
of such Serviced Loan unless otherwise required to do so pursuant to the
applicable Serviced Loan documents.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Loans, establish and
maintain one or more accounts (the "Servicing Accounts"), into which all Escrow
Payments shall be deposited and retained, and shall administer such accounts in
accordance with the terms of the related loan documents; provided that, in the
case of a Loan Combination, if the related Servicing Account includes funds with
respect to any other Serviced Loan, then the Master Servicer shall clearly
reflect any interest therein of the related Non-Trust Loan Noteholder. Each
Servicing Account shall be an Eligible Account unless not permitted by terms of
applicable Mortgage Loan documents. Withdrawals of amounts so collected from a
Servicing Account may be made in each case, to the extent of amounts on deposit
therein in respect of the related Serviced Loan (or, in the case of clauses (iv)
and (v) below, to the extent of interest or other income earned on such amounts)
only to: (i) effect payment of items for which Escrow Payments were collected
and comparable items; (ii) reimburse the Master Servicer, the Special Servicer,
the Trustee or any Fiscal Agent for any unreimbursed Servicing Advances; (iii)
refund to Mortgagors any sums as may be determined to be overages; (iv) pay
interest, if required and as described below, to Mortgagors on balances in the
Servicing Account; (v) pay itself interest and investment income on balances in
the Servicing Account as described in Section 3.06(b), if and to the extent not
required by law or the terms of the applicable Serviced Loan to be paid to the
Mortgagor; (vi) following an event of default under the related Serviced Loan,
for such other purposes as are consistent with the related Mortgage Loan
documents, applicable law and the Servicing Standard; (vii) withdraw amounts
deposited in error; or (viii) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. To the extent
permitted by law or the applicable Serviced Loan, funds in the Servicing
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06 and in accordance with the terms of the related
Serviced Loan documents. The Master Servicer shall pay or cause to be paid to
the Mortgagors interest, if any, earned on the investment of funds in Servicing
Accounts maintained thereby, if required by law or the terms of the related
Serviced
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Loan. If the Master Servicer shall deposit in a Servicing Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
The Servicing Accounts shall not be considered part of the segregated pool of
assets constituting any REMIC Pool or Grantor Trust Y.
(b) The Master Servicer (for the Serviced Loans other than (1)
Specially Serviced Loans and (2) REO Loans) or the Special Servicer (for
Specially Serviced Loans and for REO Loans that relate to an REO Property) shall
(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 the payment of such items (including
renewal premiums) and shall effect payment thereof prior to the applicable
penalty or termination date 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. For purposes of effecting any such
payment for which it is responsible, the Master Servicer shall apply Escrow
Payments (at the direction of the Special Servicer for Specially Serviced Loans
and REO Loans) as allowed under the terms of the related Serviced Loan, and if
such Serviced Loan does not require the related Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Master Servicer shall, as to all Serviced
Loans, use reasonable efforts consistent with the Servicing Standard to enforce
the requirement of the related Mortgage that the Mortgagor 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.
(c) The Master Servicer shall, as to all Serviced Loans, subject to
Section 3.01(d), make a Servicing Advance with respect to the related Mortgaged
Property in an amount equal to all such funds as are necessary for the purpose
of effecting the payment of (i) real estate taxes, assessments, penalties and
other similar items, (ii) ground rents (if applicable), and (iii) premiums on
Insurance Policies, in each instance if and to the extent Escrow Payments (if
any) collected from the related Mortgagor are insufficient to pay such item when
due and the related Mortgagor has failed to pay such item on a timely basis;
provided that the Master Servicer shall not make any Servicing Advance prior to
the penalty date or cancellation date, as applicable, if the Master Servicer
reasonably anticipates in accordance with the Servicing Standard that the
Mortgagor will pay such amount on or before the penalty date or cancellation
date; and provided, further, that the Master Servicer shall not be obligated to
make any Servicing Advance that would, if made, constitute a Nonrecoverable
Servicing Advance (although it may pay the item that such Servicing Advance was
to cover out of funds in the Collection Account (or, if applicable and there are
funds on deposit therein, a Loan Combination Custodial Account) if it
determines, and it must pay such item out of funds in the Collection Account
(or, if applicable and there are funds on deposit therein, a Loan Combination
Custodial Account) if, in the case of a Specially Serviced Loan or REO Property,
the Special Servicer determines (upon which determination the Master Servicer
may conclusively rely), that such payment would be in the best interests of the
Certificateholders (or, in the case of withdrawals from a Loan Combination
Custodial Account, would be in the best interests of the Certificateholders and
the related Non-Trust Loan Noteholder(s)), as a collective whole). All such
Servicing Advances or, as contemplated by the second proviso to the preceding
paragraph, amounts withdrawn from the Collection Account (or, if applicable and
there are funds on deposit therein, a Loan Combination Custodial Account) shall
be reimbursable in the first instance from related collections from the
Mortgagors, and further as provided in Section 3.05(a) (or, if applicable,
Section 3.05(e)). No costs incurred by the Master Servicer in effecting
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the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of such Mortgaged Properties shall, for purposes of this
Agreement, including, without limitation, the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Serviced Loans, notwithstanding that the terms of such
Serviced Loans so permit. The foregoing shall in no way limit the Master
Servicer's ability to charge and collect from the Mortgagor such costs together
with interest thereon.
The Special Servicer shall give the Master Servicer, the Trustee and
any Fiscal Agent not less than five (5) Business Days' notice with respect to
Servicing Advances to be made on any Specially Serviced Mortgage Loan or REO
Property, before the date on which the Master Servicer is required to make any
Servicing Advance with respect to a given Specially Serviced Mortgage Loan or
REO Property; provided, however, that only two (2) Business Days' notice shall
be required in respect of Servicing Advances required to be made on an urgent or
emergency basis (which may include, without limitation, Servicing Advances
required to make tax or insurance payments); and provided, further, that the
Special Servicer may elect to make the Servicing Advance out of its own funds.
In addition, the Special Servicer shall provide the Master Servicer, the Trustee
and any Fiscal Agent with such information in its possession as the Master
Servicer, the Trustee or such Fiscal Agent, as applicable, may reasonably
request to enable the Master Servicer, the Trustee or such Fiscal Agent, as
applicable, to determine whether a requested Servicing Advance would constitute
a Nonrecoverable Servicing Advance. Any request by the Special Servicer that the
Master Servicer make a Servicing Advance shall be deemed to be a determination
by the Special Servicer that such requested Servicing Advance is not a
Nonrecoverable Servicing Advance and the Master Servicer shall be entitled to
conclusively rely on such determination. On the fourth Business Day before each
Distribution Date, the Special Servicer shall report to the Master Servicer the
Special Servicer's determination as to whether any Servicing Advance previously
made or proposed to be made with respect to a Specially Serviced Mortgage Loan
or an REO Property is a Nonrecoverable Servicing Advance. The Master Servicer,
the Trustee and any Fiscal Agent shall be entitled to conclusively rely on such
a determination.
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days (or such shorter period as
may be required to avoid foreclosure of liens for delinquent real estate taxes
or a lapse in insurance coverage) after such Advance is required to be made,
then the Trustee shall, if a Responsible Officer of the Trustee has actual
knowledge of such failure on the part of the Master Servicer, give written
notice of such failure to the Master Servicer. If such Servicing Advance is not
made by the Master Servicer within five (5) Business Days after such notice,
then (subject to a determination that such Servicing Advance would not be a
Nonrecoverable Servicing Advance) the Trustee (or a Fiscal Agent on its behalf)
shall make such Servicing Advance. Any failure by the Master Servicer to make a
Servicing Advance hereunder shall constitute an Event of Default by the Master
Servicer subject to and as provided in Section 7.01.
(d) In connection with its recovery of any Servicing Advance from the
Collection Account pursuant to Section 3.05(a) or from a Loan Combination
Custodial Account pursuant to Section 3.05(e), as applicable, each of the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent shall be
entitled to receive, out of any amounts then on deposit in the Collection
Account or such Loan Combination Custodial Account, as applicable, any unpaid
interest at the Reimbursement Rate in effect from time to time, compounded
annually, accrued on the amount of such Servicing Advance (to the extent made
with its own funds) from the date made to but not including the date of
reimbursement such interest to be payable: first, out of late payment charges
and Penalty Interest
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received on the related Serviced Loan or REO Property during the Collection
Period in which such reimbursement is made; and, to the extent that such late
payment charges and Penalty Interest are insufficient, but only after or at the
same time the related Advance has been or is reimbursed pursuant to this
Agreement, then from general collections on the Mortgage Loans and REO
Properties then on deposit in the Collection Account; provided that interest on
Servicing Advances with respect to a Loan Combination or any related Mortgaged
Property shall, to the maximum extent permitted under the related Co-Lender
Agreement, be payable out of amounts otherwise payable to the related Non-Trust
Loan Noteholder(s) and/or payments received from the related Non-Trust Loan
Noteholder(s) under the related Co-Lender Agreement for such purpose. Subject to
the fourth paragraph of Section 3.05(a), the Master Servicer shall reimburse
itself, the Special Servicer, the Trustee and/or any Fiscal Agent, as
applicable, for any outstanding Servicing Advance made thereby as soon as
practicable after funds available for such purpose have been received by the
Master Servicer, and in no event shall interest accrue in accordance with this
Section 3.03(d) on any Servicing Advance as to which the corresponding Escrow
Payment or other similar payment by the Mortgagor was received by the Master
Servicer on or prior to the date the related Servicing Advance was made.
(e) The determination by the Master Servicer or the Special Servicer
that a Nonrecoverable Servicing Advance has been made or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be made in accordance with the Servicing Standard and shall be evidenced
by an Officer's Certificate delivered promptly to the Master Servicer (if the
Special Servicer is delivering such Officer's Certificate), the Special Servicer
(if the Master Servicer is delivering such Officer's Certificate), the Trustee,
any Fiscal Agent, the Depositor and, in the case of a Loan Combination, the
related Non-Trust Loan Noteholder(s), setting forth the basis for such
determination, together with a copy of any Appraisal (the cost of which may be
paid out of the Collection Account pursuant to Section 3.05(a)) or, in the case
of a Loan Combination, out of the related Loan Combination Custodial Account
pursuant to Section 3.05(e)) of the related Mortgaged Property or REO Property,
as the case may be; which Appraisal shall be conducted pursuant to Section
3.09(a) by the Master Servicer, or by or on behalf of the Special Servicer if
the Serviced Loan is a Specially Serviced Loan or, if no such Appraisal has been
performed, a copy of an Appraisal of the related Mortgaged Property or REO
Property, performed within the twelve (12) months preceding such determination
and the party delivering such appraisal has no actual knowledge of a material
adverse change in the condition of the related Mortgaged Property that would
draw into question the applicability of such Appraisal, by an Independent
Appraiser or other expert in real estate matters, and further accompanied by
related Mortgagor operating statements and financial statements, budgets and
rent rolls of the related Mortgaged Property and any engineers' reports,
environmental surveys or similar reports that the Master Servicer or the Special
Servicer may have obtained and that support such determination. In making a
recoverability determination, the applicable Person will be entitled, but not
obligated, to consider (among other things) the obligations of the related
Mortgagor under the terms of the related Serviced Loan as it may have been
modified, to consider (among other things) the related Mortgaged Property in its
"as is" or then current conditions and occupancies, as modified by such Person's
reasonable assumptions (in the case of the Master Servicer, consistent with the
Servicing Standard) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Property, to estimate and consider (among
other things) future expenses, to estimate and consider (consistent with the
Servicing Standard) (among other things) the timing of recoveries, and to
consider the existence and amount of any outstanding Nonrecoverable Advances the
reimbursement of which is being deferred pursuant to Section 3.05(a), together
with (to the extent accrued and unpaid) interest on such Advances. In addition,
any such Person may update or change its recoverability determinations at any
time, and (in the case of the Master Servicer, consistent with the Servicing
Standard) the Master
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Servicer and the Trustee each may obtain from the Special Servicer any
Appraisals or market value estimates or other information in the Special
Servicer's possession for such purposes.
The Trustee, any Fiscal Agent and the Master Servicer, in the case of
any Specially Serviced Loan and any REO Property, shall conclusively rely on any
determination by the Special Servicer that a Servicing Advance, if made, would
be a Nonrecoverable Advance, and the Trustee and any Fiscal Agent shall be
entitled to rely, conclusively, on any determination by the Master Servicer that
a Servicing Advance, if made, would be a Nonrecoverable Advance; provided,
however, that, if the Master Servicer has failed to make a Servicing Advance for
reasons other than a determination by the Master Servicer that such Servicing
Advance would be a Nonrecoverable Advance, the Trustee shall make such Servicing
Advance within the time periods required by Section 3.03(c) unless the Trustee
in good faith, makes a determination that such Servicing Advance would be a
Nonrecoverable Advance; and provided, further, that, if the Trustee fails to
make such Servicing Advance for reasons other than a determination by the
Trustee that such Servicing Advance would be a Nonrecoverable Advance, any
Fiscal Agent shall make such Servicing Advance within the time periods required
by Section 3.03(c) unless such Fiscal Agent in good faith, makes a determination
that such Servicing Advance would be a Nonrecoverable Advance.
(f) The Master Servicer shall, as to all Serviced Loans, establish and
maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained; provided that,
in the case of a Loan Combination, if the related Reserve Account includes funds
with respect to any other Serviced Loan, then the Master Servicer shall clearly
reflect any interest therein of the related Non-Trust Loan Noteholder.
Withdrawals of amounts so deposited with respect to any Serviced Loan may be
made: (i) to pay for, or to reimburse the related Mortgagor in connection with,
the related environmental remediation, repairs and/or capital improvements at
the related Mortgaged Property if the repairs and/or capital improvements have
been completed, and such withdrawals are made in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any agreement
with the related Mortgagor governing such Reserve Funds and any other items for
which such Reserve Funds were intended pursuant to the loan documents; (ii) to
pay the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below if permitted under the related Serviced Loan
documents; and (iii) following an event of default under such Serviced Loan, for
such other purposes as are consistent with the related Serviced Loan documents,
applicable co-lender and/or intercreditor agreements, applicable law and the
Servicing Standard. To the extent permitted in the applicable Mortgage, funds in
the Reserve Accounts to the extent invested may be only invested in Permitted
Investments in accordance with the provisions of Section 3.06. All Reserve
Accounts shall be Eligible Accounts. The Reserve Accounts shall not be
considered part of the segregated pool of assets comprising any REMIC Pool or
Grantor Trust Y. Consistent with the Servicing Standard, the Master Servicer may
waive or extend the date set forth in any agreement governing such Reserve Funds
by which the required repairs and/or capital improvements at the related
Mortgaged Property must be completed.
SECTION 3.04 Collection Account, Interest Reserve Account,
Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account and Loan Combination
Custodial Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Collection Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders. The Collection Account shall
be an Eligible Account and shall be maintained as a
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segregated account, separate and apart from trust funds created for mortgage
pass-through certificates of other series and the other accounts of the Master
Servicer. The Master Servicer shall deposit or cause to be deposited in the
Collection Account, within one (1) Business Day of receipt of available funds
(in the case of payments by Mortgagors or other collections on the Mortgage
Loans) or as otherwise required hereunder, the following payments and
collections received or made by the Master Servicer or on its behalf subsequent
to the Cut-off Date (other than in respect of principal and interest on the
Mortgage Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the applicable Mortgage Loan Seller or its
designee, with negotiable instruments endorsed as necessary and appropriate
without recourse, and other than amounts received from Mortgagors which are to
be used to purchase defeasance collateral), or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to a
period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
including Additional Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges on
the Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan (including any such amounts representing
recoveries of Nonrecoverable Advances, including interest on such
Nonrecoverable Advances);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06(b) in connection with losses incurred with respect
to Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket hazard policy or a
force placed policy;
(vii) any amounts required to be transferred from the Pool REO
Account pursuant to Section 3.16(c);
(viii) any amount in respect of Purchase Prices and Substitution
Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls;
(x) any amount paid by a Mortgagor to cover items for which a
Servicing Advance has been previously made and for which the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as
applicable, has been previously reimbursed out of the Collection Account;
(xi) any amount required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.11(b) and 3.11(d),
respectively, to pay unpaid interest on
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Advances and/or in connection with reimbursing the Trust Fund for
Additional Trust Fund Expenses, including, without limitation, interest on
Advances and the cost of inspections performed by the Special Servicer
pursuant to the first sentence of Section 3.12(a);
(xii) any amounts (A) required to be transferred from any Loan
Combination Custodial Account pursuant to Section 3.05(e) or (B) paid by
the related Non-Trust Loan Noteholder(s), in accordance with the related
Co-Lender Agreement, to reimburse the Trust; and
(xiii) amounts paid by a mezzanine lender in connection with
curing a default under the applicable Mortgage Loan;
provided that, in the case of a Combination Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, subject to the related Co-Lender Agreement,
any amounts described in clauses (i)-(iv), (vi), (x) and (xiii) above required
to be deposited in the related Loan Combination Custodial Account pursuant to
Section 3.04(f), shall first be so deposited in the related Loan Combination
Custodial Account and shall thereafter be transferred to the Collection Account
only to the extent provided in Section 3.05(e).
The foregoing requirements for deposit in the Collection Account shall
be exclusive. Notwithstanding the foregoing, actual payments from Mortgagors in
the nature of Escrow Payments, amounts to be deposited in Reserve Accounts, and
amounts that the Master Servicer and the Special Servicer are entitled to retain
as additional servicing compensation pursuant to Sections 3.11(b) and 3.11(d),
need not be deposited by the Master Servicer in the Collection Account. If the
Master Servicer shall deposit 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. The
Master Servicer shall promptly deliver to the Special Servicer as additional
servicing compensation in accordance with Section 3.11(d), assumption fees, late
payment charges (to the extent not applied to pay interest on Advances as
provided in Sections 3.03(d) or 4.03(d) or to reimburse the Trust for Additional
Trust Fund Expenses, including, without limitation, interest on Advances and the
cost of inspections performed by the Special Servicer pursuant to the first
sentence of Section 3.12(a), as provided in Section 3.11(d)) and other
transaction fees or other expenses received by the Master Servicer to which the
Special Servicer is entitled pursuant to Section 3.11(d) upon receipt of a
certificate of a Servicing Officer of the Special Servicer describing the item
and amount.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (vi), (viii), (x), (xi), (xii)(B) and (xiii) of the last sentence of the
second preceding paragraph with respect to any Mortgage Loan, the Special
Servicer shall promptly, but in no event later than one (1) Business Day after
receipt of available funds, remit such amounts (net of any reimbursable expenses
incurred by the Special Servicer) to or at the direction of the Master Servicer
for deposit into the Collection Account in accordance with the second preceding
paragraph or any applicable Loan Combination Custodial Account in accordance
with Section 3.04(f), as applicable, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement. Any such amounts received by the
Special Servicer with respect to an REO Property shall be deposited by the
Special Servicer into the related REO Account and remitted to the Master
Servicer for deposit into the Collection Account or any applicable Loan
Combination Custodial Account, as the case may be, pursuant to Section 3.16(c).
With respect to any such amounts paid by check to the order of the Special
Servicer, the Special Servicer shall endorse such check to the order of the
Master Servicer and shall deliver promptly, but in no event later than three (3)
Business Days after
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receipt, any such check to the Master Servicer by overnight courier, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item cannot be so endorsed and delivered because of a restrictive
endorsement or other appropriate reason.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") at the office of the Trustee
to be held in trust for the benefit of the Certificateholders. The Distribution
Account shall be an Eligible Account and shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage pass-through
certificates of other series and the other accounts of the Trustee.
The Master Servicer shall deliver to the Trustee each month on or
before 1:30 p.m. New York City time on the P&I Advance Date therein, for deposit
in the Distribution Account, an aggregate amount of immediately available funds
equal to that portion of the Available Distribution Amount (calculated without
regard to clauses (a)(ii), (a)(v), (b)(ii)(B) and (b)(v) of the definition
thereof) for the related Distribution Date then on deposit in the Collection
Account, together with (i) any Prepayment Premiums, Yield Maintenance Charges
and/or Additional Interest received on the Mortgage Loans during the related
Collection Period, and (ii) in the case of the final Distribution Date, any
additional amounts contemplated by the second or third, as applicable, paragraph
of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account any
P&I Advances required to be made by the Master Servicer in accordance with
Section 4.03(a).
The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein.
The Trustee shall, as and when required, deposit in the Distribution
Account any amounts required to be so deposited by the Trustee pursuant to
Section 3.06(b) in connection with losses incurred with respect to Permitted
Investments of funds in the Distribution Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), on behalf of and for the benefit
of the Certificateholders. The Interest Reserve Account shall be an Eligible
Account and shall be maintained as a segregated account, separate and apart from
trust funds created for mortgage pass-through certificates of other series and
the other accounts of the Trustee; provided that, subject to Section 3.04(g),
the Interest Reserve Account may be a sub-account of the Distribution Account.
On or before each Distribution Date in February and, during each year that is
not a leap year, January, the Trustee shall withdraw from the Distribution
Account and deposit in the Interest Reserve Account, with respect to, and out of
collections and/or advances of interest on, each Interest Reserve Mortgage Loan
and Interest Reserve REO Mortgage Loan, an amount equal to the Interest Reserve
Amount in respect of such Interest Reserve Mortgage Loan or Interest Reserve REO
Mortgage Loan, as the case may be, for such Distribution Date.
The Trustee shall, as and when required, deposit in the Interest
Reserve Account any amounts required to be so deposited by the Trustee pursuant
to Section 3.06(b) in connection with losses incurred with respect to Permitted
Investments of funds in the Interest Reserve Account.
(d) Prior to any Collection Period during which Additional Interest is
received, and upon notification from the Master Servicer or Special Servicer
pursuant to Section 3.02(d), the Trustee, on behalf of the Certificateholders
shall establish and maintain the Additional Interest Account in the
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name of the Trustee in trust for the benefit of the Class Y Certificateholders.
The Additional Interest Account shall be established and maintained as an
Eligible Account and shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series and the other accounts of the Trustee; provided that, subject to Section
3.04(g), the Additional Interest Account may be a sub-account of the
Distribution Account. On or prior to the applicable P&I Advance Date, the Master
Servicer shall remit to the Trustee for deposit in the Additional Interest
Account an amount equal to the Additional Interest received during any
Collection Period.
Following the distribution of Additional Interest to the Class Y
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Additional Interest, the Trustee shall terminate the Additional Interest
Account.
The Trustee shall, as and when required, deposit in the Additional
Interest Account any amounts required to be so deposited by the Trustee pursuant
to Section 3.06(b) in connection with losses incurred with respect to Permitted
Investments of funds in the Additional Interest Account.
(e) The Trustee, on behalf of and for the benefit of the
Certificateholders, shall establish (upon notice from Special Servicer of an
event occurring that generates Gain-on-Sale Proceeds) and maintain the
Gain-on-Sale Reserve Account. The Gain-on-Sale Reserve Account shall be an
Eligible Account and shall be maintained as a segregated account, separate and
apart from trust funds for mortgage pass-through certificates of other series
administered by the Trustee and other accounts of the Trustee; provided that,
subject to Section 3.04(g), the Gain-on-Sale Reserve Fund may be a sub-account
of the Distribution Account. Upon the disposition of any REO Property or the
liquidation of any Specially Serviced Mortgage Loan in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale or liquidation, as the
case may be, and remit such funds to the Trustee for deposit into the
Gain-on-Sale Reserve Account.
The Trustee shall, as and when required, deposit in the Gain-on-Sale
Reserve Account any amounts required to be so deposited pursuant to Section
3.06(b) in connection with losses incurred with respect to Permitted Investments
of funds in the Gain-on-Sale Reserve Account.
(f) The Master Servicer shall establish and maintain, or cause to be
established and maintained, one or more separate accounts for each Loan
Combination (collectively, as to each Loan Combination, the related "Loan
Combination Custodial Account"), held on behalf of the Certificateholders and
the related Non-Trust Loan Noteholder(s). Each Loan Combination Custodial
Account shall be an Eligible Account and shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage pass-through
certificates of other series and the other accounts of the Master Servicer;
provided that, subject to Section 3.04(g), any Loan Combination Custodial
Account may be a sub-account of the Collection Account. Subject to the related
Co-Lender Agreement, the Master Servicer shall deposit or cause to be deposited
in the Loan Combination Custodial Account with respect to any Loan Combination,
within one (1) Business Day of receipt of available funds, the following
payments and collections received subsequent to the Cut-off Date (other than in
respect of principal and interest on such Loan Combination due and payable on or
before the Cut-off Date, which payments shall be delivered promptly to the
applicable Mortgage Loan Seller or the related Non-Trust Loan Noteholder(s), as
the case may be, with negotiable instruments endorsed as necessary and
appropriate without recourse, and other than amounts received from Mortgagors
which
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are to be used to purchase defeasance collateral with respect to such Loan
Combination), or payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal on the subject Loan
Combination, including Principal Prepayments;
(ii) all payments on account of interest on the subject Loan
Combination, including Additional Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges on
the subject Loan Combination;
(iv) to the extent not otherwise required to be deposited into a
Loan Combination REO Account, all Insurance Proceeds and Liquidation
Proceeds received in respect of the subject Loan Combination (including,
without limitation, any amounts representing recoveries of Nonrecoverable
Advances in respect of such Loan Combination, including interest on such
Nonrecoverable Advances, but excluding any Liquidation Proceeds described
in clauses (iv), (v), (vi) (except as to an REO Property) and (vii) of the
definition thereof received on the subject Combination Mortgage Loan while
it remains outstanding (which Liquidation Proceeds will be deposited in the
Collection Account));
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in such Loan Combination Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses with respect to the subject Loan Combination resulting from a
deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred to such Loan
Combination Custodial Account from the related Loan Combination REO Account
pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amount paid by a Mortgagor with respect to the subject Loan Combination
specifically to cover items for which a Servicing Advance has been
previously made;
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from a related
Non-Trust Loan Noteholder in accordance with the related Co-Lender
Agreement; and
(x) any amounts paid by a related Non-Trust Loan Noteholder or
mezzanine lender in connection with curing a default under the subject Loan
Combination;
provided, however, that, at any time during which the Wimbledon Place Apartments
Co-Lender Agreement requires that remittances in respect of the Wimbledon Place
Apartments Non-Trust Loan be made directly to the related Non-Trust Loan
Noteholder, the Master Servicer shall remit any amounts received in respect of
the Wimbledon Place Apartments Non-Trust Loan to the servicer of such Non-
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Trust Loan, except to the extent that amounts received in respect of such
Non-Trust Loan due and owing to any Person pursuant to this Agreement
(including, without limitation, for any of the purposes described in Section
3.05(e)) and the related Co-Lender Agreement, in which case the Master Servicer
shall deposit such amounts in the related Loan Combination Custodial Account.
The foregoing requirements for deposit in a Loan Combination Custodial
Account shall be exclusive. Notwithstanding the foregoing, actual payments from
the related Mortgagor in respect of any Loan Combination in the nature of Escrow
Payments, amounts to be deposited in Reserve Accounts, and amounts that the
Master Servicer and the Special Servicer are entitled to retain as additional
servicing compensation pursuant to Sections 3.11(b) and 3.11(d), need not be
deposited by the Master Servicer in a Loan Combination Custodial Account. If the
Master Servicer shall deposit in a Loan Combination Custodial Account any amount
not required to be deposited therein, it may at any time withdraw such amount
from such Loan Combination Custodial Account, any provision herein to the
contrary notwithstanding. The Master Servicer shall promptly deliver to the
Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(d), assumption fees and other transaction fees or other
expenses received by the Master Servicer with respect to any Loan Combination,
to which the Special Servicer is entitled pursuant to Section 3.11(d), upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii), (ix) and (x) of the last sentence of the second preceding
paragraph with respect to a Loan Combination, the Special Servicer shall
promptly, but in no event later than one (1) Business Day after receipt of
available funds, remit such amounts (net of any reimbursable expenses incurred
by the Special Servicer) to or at the direction of the Master Servicer for
deposit into the related Loan Combination Custodial Account (or, if applicable,
for remittance to the servicer of the related Non-Trust Loan) in accordance with
the second preceding paragraph, 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 an REO Property
shall be deposited by the Special Servicer into the related Loan Combination REO
Account and remitted to the Master Servicer for deposit into the related Loan
Combination Custodial Account pursuant to Section 3.16(c). With respect to any
such amounts paid by check to the order of the Special Servicer, the Special
Servicer shall endorse such check to the order of the Master Servicer and shall
deliver promptly, but in no event later than three (3) Business Days after
receipt, any such check to the Master Servicer by overnight courier, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item cannot be so endorsed and delivered because of a restrictive
endorsement or other appropriate reason.
(g) Funds in the Collection Account, the Loan Combination Custodial
Accounts, the Interest Reserve Account, the Distribution Account, the
Gain-on-Sale Reserve Account and the Additional Interest Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall give written notice to the Trustee, the Special
Servicer and the Rating Agencies of the location of the Collection Account and
the Loan Combination Custodial Accounts as of the Closing Date and of the new
location of the Collection Account and the Loan Combination Custodial Accounts
prior to any change thereof. The Trustee shall give written notice to the Master
Servicer, the Special Servicer and the Rating Agencies of the location of the
Distribution Account as of the Closing Date and of any new location of the
Distribution Account prior to any change thereof.
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Notwithstanding that any Loan Combination Custodial Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
any such Loan Combination Custodial Account and the Collection Account shall,
for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold harmless the Trust Fund and each Non-Trust
Loan Noteholder against any losses arising out of the failure by the Master
Servicer to perform its duties and obligations hereunder as if such accounts
were separate accounts. The provisions of this paragraph shall survive any
resignation or removal of the Master Servicer and appointment of a successor
master servicer.
Notwithstanding that the Additional Interest Account, the Interest
Reserve Account, the Floating Rate Account or the Gain-on-Sale Reserve Account
may be a sub-account of the Distribution Account for reasons of administrative
convenience, the Additional Interest Account, the Gain-on-Sale Reserve Account,
the Interest Reserve Account and the Distribution Account shall, for all
purposes of this Agreement (including the obligations and responsibilities of
the Trustee hereunder), be considered to be and shall be required to be treated
as, separate and distinct accounts. The Trustee shall indemnify and hold
harmless the Trust Fund against any losses arising out of the failure by the
Trustee to perform its duties and obligations hereunder as if such accounts were
separate accounts. The provisions of this paragraph shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
SECTION 3.05 Permitted Withdrawals from the Collection Account,
Interest Reserve Account, Additional Interest Account,
Distribution Account and Loan Combination Custodial
Accounts.
(a) The Master Servicer may, from time to time, make withdrawals from
the Collection Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so deposited pursuant to the first
paragraph of Section 3.04(b) and any amount that may be applied to make P&I
Advances pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee and itself, in
that order, for xxxxxxxxxxxx X&X Advances in respect of any Mortgage Loan,
such Fiscal Agent's, the Trustee's and the Master Servicer's right to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable Advances, which are reimbursable pursuant to
clause (vii) below) being limited to amounts that represent Late
Collections of interest (net of the related Master Servicing Fees) and
principal (net of any related Workout Fee or Liquidation Fee) received in
respect of the particular Mortgage Loan or REO Mortgage Loan as to which
such P&I Advance was made;
(iii) to pay to itself and/or the holder of the related Excess
Servicing Strip (subject to Section 3.11(a)) earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Mortgage Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Mortgage Loan or REO Mortgage Loan being limited to amounts
received on or in respect of such Mortgage Loan (whether in the form of
payments (including cure payments), Liquidation Proceeds or Insurance
Proceeds) or such REO Mortgage Loan
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(whether in the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and each
REO Mortgage Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees or Liquidation Fees in
respect of each Specially Serviced Mortgage Loan, each Corrected Mortgage
Loan and/or each REO Mortgage Loan, as applicable, in the amounts and from
the sources provided in Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, the Special
Servicer or itself, in that order, for any unreimbursed Servicing Advances
in respect of any Mortgage Loan or REO Property, such Fiscal Agent's, the
Trustee's, the Special Servicer's and the Master Servicer's respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance being limited to payments made by or on behalf of the
related Mortgagor or cure payments that are allocable to such Servicing
Advance, and to Liquidation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property as to which such Servicing Advance was made;
(vii) to (A) reimburse any Fiscal Agent, the Trustee, the Special
Servicer or itself, in that order, for any unreimbursed Advances (including
interest at the Reimbursement Rate) that have been or are determined to be
Nonrecoverable Advances or (B) pay itself, with respect to any Mortgage
Loan or REO Mortgage Loan, any related earned Master Servicing Fee that
remained unpaid in accordance with clause (iii) above following a Final
Recovery Determination made with respect to such Mortgage Loan or any
related REO Property and the deposit into the Collection Account of all
amounts received in connection therewith;
(viii) at such time as or after it reimburses any Fiscal Agent,
the Trustee, the Special Servicer or itself, in that order, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above, Section
3.03 or Section 3.05(e), to pay such Fiscal Agent, the Trustee, the Special
Servicer or itself, as the case may be, in that order, any interest accrued
and payable thereon in accordance with Section 3.03(d) or 4.03(d), as
applicable, such Fiscal Agent's, the Trustee's, the Special Servicer's and
the Master Servicer's respective rights to payment pursuant to this clause
(viii) with respect to interest on any Advance being permitted to be
satisfied (A) first out of late payment charges and Penalty Interest on
deposit in the Collection Account collected on or in respect of the
Mortgage Loan or REO Mortgage Loan to which the reimbursed Advance relates
during the Collection Period in which such Advance is reimbursed (the use
of such late payment charges and Penalty Interest to be allocated between
the Master Servicer and the Special Servicer on a pro rata basis based on
the amount of late payment charges and Penalty Interest that the Master
Servicer and the Special Servicer have received as additional servicing
compensation during such period), and (B) to the extent that the late
payment charges and Penalty Interest described in the immediately preceding
clause (A) are insufficient, but only at the same time or after such
Advance has been reimbursed, out of general collections on the Mortgage
Loans and any REO Properties on deposit in the Collection Account;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to the first sentence of Section 3.12(a) with respect to any
Mortgaged Property securing a Specially Serviced Mortgage Loan;
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(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Collection Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with respect
to the Collection Account for any Collection Period, and (B) any Prepayment
Interest Excesses collected with respect to the Mortgage Loans;
(xi) to pay for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18(b), 4.03(c) or 9.01;
(xii) 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;
(xiii) to pay for (A) the advice of counsel and tax accountants
contemplated by Section 3.17(a), (B) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b)(ii), 3.20(d) and 11.02(a), (C) the cost of
an Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of Certificateholders, (D) the cost of recording this
Agreement in accordance with Section 11.02(a), and (E) any rating
confirmations from the Rating Agencies that are not otherwise payable by a
Mortgagor or a party to this Agreement;
(xiv) to pay itself, the Special Servicer, the related Mortgage
Loan Seller, the Majority Controlling Class Certificateholder, a Non-Trust
Loan Noteholder or any other Person, as the case may be, with respect to
each Mortgage Loan, if any, previously purchased or otherwise removed from
the Trust Fund by such Person(s) pursuant to or as otherwise contemplated
by this Agreement, all amounts received thereon subsequent to the date of
purchase or removal, and, in the case of a replacement of a Mortgage Loan
by a Qualified Substitute Mortgage Loan or Loans, all Periodic Payments due
with respect to such Qualified Substitute Mortgage Loan(s) during or prior
to the month of substitution, in accordance with Section 2.03(c);
(xv) to pay to a Non-Trust Loan Noteholder any amount (other than
normal monthly payments) specifically payable or reimbursable to such party
by the Trust, in its capacity as purchaser and holder of the related
Combination Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, pursuant to the terms of the related Co-Lender Agreement;
(xvi) to withdraw any amounts deposited in error;
(xvii) to remit to the Trustee for deposit into the Additional
Interest Account the amounts required to be deposited pursuant to Section
3.04(d);
(xviii) to pay the cost of any Environmental Assessment or any
remedial, corrective or other action pursuant to Section 3.09(c);
(xix) to pay any amount that, if made as a Servicing Advance,
would constitute a Nonrecoverable Servicing Advance, provided that the
Master Servicer (or, in the case of Specially Serviced Mortgage Loans and
REO Properties, the Special Servicer)
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determines that such payment would be in the best interests of the
Certificateholders, pursuant to Section 3.03(c);
(xx) to withdraw any other amounts that this Agreement expressly
provides may be withdrawn from the Collection Account; and
(xxi) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01;
provided that, notwithstanding the foregoing, the Master Servicer shall not make
withdrawals from the Collection Account with respect to any Combination Mortgage
Loan or any successor REO Mortgage Loan with respect thereto, any Loan
Combination (as a whole) or any Loan Combination REO Property for any of the
purposes contemplated by clauses (ii), (iii), (v), (vi) and (viii)(A) above
(but, in the case of such clause (viii)(A), only insofar as it relates to clause
(ii) or (vi) above); and provided, further, that, also notwithstanding the
foregoing, any withdrawal from the Collection Account pursuant to any of clauses
(iv), (viii)(B), (ix), (xi), (xii), (xiii) and (xviii) above that relates or is
allocable to (A) any Combination Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, (B) except in the case of clause (iv), any Loan
Combination (as a whole) or (C) any Loan Combination REO Property, shall be
permitted to be made only if and to the extent that (1) (x) any amounts then on
deposit in the related Loan Combination Custodial Account that are, in
accordance with Section 3.05(e) and the related Co-Lender Agreement, available
to pay the item for which the withdrawal is to be made, are insufficient to pay
such item in full, and (y) payment of the item for which the withdrawal is to be
made cannot reasonably be expected to ultimately be made out of amounts on
deposit in the related Loan Combination Custodial Account in accordance with
Section 3.05(e), or (2) such payment, if made out of the Collection Account,
will be reimbursable to the Trust in accordance with the related Co-Lender
Agreement, subject to available funds, out of collections on the related Loan
Combination or any related Loan Combination REO Property that are otherwise
payable to the related Non-Trust Loan Noteholder(s) in accordance with Section
3.05(e), or (3) such payment, in the Master Servicer's judgment in accordance
with the Servicing Standard, is in the best interests of the Certificateholders;
and provided, further, that no servicing compensation earned with respect to a
Non-Trust Loan or any successor REO Non-Trust Loan with respect thereto shall be
payable out of the Collection Account at any time.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Collection Account pursuant to the preceding paragraph
above. 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 REMIC I with respect
to the Mortgage Loans.
The Master Servicer shall pay to the Special Servicer, the Trustee or
a Fiscal Agent from the Collection Account amounts permitted to be paid to the
Special Servicer, the Trustee or such Fiscal Agent, as the case may be,
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer or of a Responsible Officer of the Trustee or such Fiscal
Agent, as the case may be, describing the item and amount to which the Special
Servicer, the Trustee or such Fiscal Agent, as the case may be, 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 Mortgage Loan and
REO Property, on a loan-by-loan and property-by-property basis, for the purpose
of justifying any request for withdrawal from the
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Collection Account. With respect to each Mortgage Loan and REO Property for
which it makes an Advance, the Trustee shall similarly keep and maintain
separate accounting, on a loan-by-loan and property-by-property basis, for the
purpose of justifying any request for withdrawal from the Collection Account for
reimbursements of Advances or interest thereon. With respect to each Mortgage
Loan and REO Property for which it makes an Advance, a Fiscal Agent shall
similarly keep and maintain separate accounting, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Collection Account for reimbursements of Advances or
interest thereon.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Master Servicer, the Special Servicer, the Trustee
or the Fiscal Agent (if any), as applicable, may, in its sole discretion, elect
to obtain reimbursement for such Nonrecoverable Advance (together with accrued
and unpaid interest thereon) over a period of time not to exceed 12 consecutive
months without the consent of the Controlling Class Representative (which
consent may be withheld in its sole discretion). The unreimbursed portion of any
Advance in respect of which reimbursement has been deferred as described in the
preceding sentence shall accrue interest at the Prime Rate. At any time after
such a determination to obtain reimbursement over time, the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent (if any), as applicable, may,
in its sole discretion, decide to obtain reimbursement immediately. The fact
that a decision to recover such Nonrecoverable Advances over time, or not to do
so, benefits some Classes of Certificateholders to the detriment of other
Classes shall not, with respect to the Master Servicer or the Special Servicer,
constitute a violation of the Servicing Standard, or with respect to the Trustee
or the Fiscal Agent (if any), constitute a violation of any fiduciary duty to
Certificateholders and/or contractual duty hereunder. The Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent (if any) shall each give
Fitch and Xxxxx'x at least 15 days' notice prior to any reimbursement to it of
Nonrecoverable Advances from amounts in the Collection Account or Distribution
Account allocable to interest on the Mortgage Loans unless (1) it determines in
its sole discretion that waiting 15 days after such a notice could jeopardize
its ability to recover such Nonrecoverable Advances, (2) changed circumstances
or new or different information becomes known to it 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) except in the case of the Trustee, it has not timely received
from the Trustee information requested by it to consider in determining whether
to defer reimbursement of a Nonrecoverable Advance; provided, however, that if
clause (1), (2) or (3) applies, the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent (if any), as the case may be, shall give Fitch and
Xxxxx'x notice of an anticipated reimbursement to it of Nonrecoverable Advances
from amounts in the Collection Account or Distribution Account allocable to
interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances; and provided, further, that, as a condition to the Special
Servicer providing the notices described above, the Master Servicer shall
provide to the Special Servicer such information regarding amounts in the
Collection Account allocable to interest as may be required by the Special
Servicer to provide notice pursuant to this sentence. The Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent (if any) shall have no
liability for any loss, liability or expense resulting from any notice provided
to Fitch and Xxxxx'x contemplated by the immediately preceding sentence.
If the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent (if any), 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 amounts described in
clauses (a) through (f) of the
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definition of "Principal Distribution Amount", which, but for their application
to reimburse a Nonrecoverable Advance and/or to pay interest thereon, would be
included in the Available Distribution Amount 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 the Available Distribution Amount for any subsequent Distribution
Date; provided that, in connection with any reimbursement of a Nonrecoverable
Advance or the payment of interest thereon in accordance with either clause
first or clause second, as the case may be, of this sentence, such reimbursement
or payment of interest pursuant to such clause shall be deemed made first, and
to the fullest extent possible, out of amounts described in such clause that are
attributable to the Loan Group that includes the Mortgage Loan or REO Mortgage
Loan, as applicable, as to which such Nonrecoverable Advance was made, and only
thereafter out of amounts described in such clause that are attributable to the
other Loan Group. If and to the extent that any payment is deemed to be applied
in accordance with clause first of the preceding sentence to reimburse a
Nonrecoverable Advance or to pay interest thereon, then, in accordance with the
definition thereof, the Principal Distribution Amount for such Distribution Date
shall be reduced (to not less than zero) by the amount of such reimbursement
and/or payment of interest. In addition, if and to the extent that any payment
is deemed to be applied in accordance with clause first or clause second of the
second preceding sentence to reimburse a Nonrecoverable Advance or to pay
interest thereon, then, for purposes of determining the respective portions of
the Principal Distribution Amount and/or the Available Distribution Amount, as
applicable, for the relevant Distribution Date that are attributable to each
Loan Group, the parties hereto shall take into account whether such payment is
deemed made out of amounts relating to Loan Group No. 1 or Loan Group No. 2 in
accordance with the proviso to the second preceding sentence.
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 amounts constituting part of the Principal Distribution Amount as
contemplated by clause first of the first sentence of the preceding paragraph
and (iii) the particular item for which such Advance was originally made and/or
such interest on such Advance, as the case may be, is subsequently collected out
of payments or other collections in respect of the related Mortgage Loan, then,
in accordance with the definition thereof, the Principal Distribution Amount for
the Distribution Date that corresponds to the Collection Period in which such
item and/or such interest on such Advance, as the case may be, was recovered
shall be increased by an amount equal to the lesser of (A) the amount of such
recoveries and (B) any previous reduction in the Principal Distribution Amount
for a prior Distribution Date pursuant to the definition thereof resulting from
the reimbursement of the subject Advance and/or the payment of interest thereon.
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 amounts
constituting part of the Principal Distribution Amount as contemplated by clause
first of the first sentence of the preceding paragraph or out of any other
portion of the Available Distribution Amount as contemplated by clause second of
the first sentence of the preceding paragraph and (iii) the particular item for
which such Advance was originally made, or such interest paid on such Advance,
is subsequently collected out of payments or other collections in respect of the
related Mortgage Loan or REO Mortgage Loan, then, for purposes of determining
the respective portions of the Principal Distribution Amount and/or the
Available Distribution Amount, as applicable, for the relevant Distribution Date
that are attributable to each Loan Group, such recoveries shall be deemed
allocated to offset the corresponding prior reductions in amounts attributable
to each Loan Group in reverse order to that set forth in the prior paragraph.
In connection with any payments required to be made to a Non-Trust
Loan Noteholder in accordance with Section 3.05(a)(xv), the Master Servicer may
request a written statement from such
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Non-Trust Loan Noteholder describing the nature and amount of the item for which
such party is seeking payment or reimbursement and setting forth the
provision(s) of the related Co-Lender Agreement pursuant to which such party
believes it is entitled to reimbursement; provided that the Master Servicer may
not condition payments required to be made to a Non-Trust Loan Noteholder in
accordance with Section 3.05(a)(xv) upon receipt of such a written statement
(other than as permitted under the related Co-Lender Agreement); and provided,
further, that to the extent such a written statement from a Non-Trust Loan
Noteholder is received by the Master Servicer, the Master Servicer may
conclusively rely, absent manifest error and consistent with the Servicing
Standard, upon such statement as to the nature and amount of the item for which
reimbursement is sought.
(b) Subject to Section 3.05(c), the Trustee may, from time to time,
make withdrawals from the Distribution Account for any of the following purposes
(in no particular order of priority):
(i) to make distributions to the Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to pay the Trustee or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person out of the Trust Fund pursuant to Section
8.05;
(iii) to pay the Trustee the Trustee Fee as contemplated by
Section 8.05(a) hereof with respect to each Mortgage Loan and REO Mortgage
Loan and to pay the Trustee, as additional compensation, interest and
investment income, if any, earned in respect of amounts held in the
Distribution Account as provided in Section 3.06, but only to the extent of
the Net Investment Earnings with respect to such account for the related
Distribution Date;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization," (B) as contemplated by Section 3.20(d), 9.02(a) and
10.01(h), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
which amendment is in furtherance of the rights and interests of
Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on
any REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, to the extent none of the Trustee,
the Tax Administrator, the Master Servicer or the Special Servicer is
liable therefor pursuant to Section 10.01(i);
(vi) to pay the Tax Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts remitted by the
Master Servicer for deposit into the Distribution Account that were not
required to be deposited therein; and
(viii) to transfer Interest Reserve Amounts to the Interest
Reserve Account in accordance with Section 3.04(c);
(ix) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
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Taxes imposed on any REMIC Pool shall be allocated to the related
REMIC.
(c) The Trustee shall on each P&I Advance Date to occur in March of
each year and in the event the final Distribution Date occurs in February or, if
such year is not a leap year, in January, on the P&I Advance Date to occur in
such February or January, withdraw from the Interest Reserve Account and deposit
into the Distribution Account in respect of each Interest Reserve Mortgage Loan
and Interest Reserve REO Mortgage Loan, an amount equal to the aggregate of the
Interest Reserve Amounts then on deposit in the Interest Reserve Account.
(d) The Trustee shall, on any Distribution Date, make withdrawals from
the Additional Interest Account to the extent required to make the distributions
of Additional Interest required by Section 4.01(d).
(e) The Master Servicer may, from time to time, make withdrawals from
the Loan Combination Custodial Account (if any) with respect to each Loan
Combination for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals), in each case, to the
extent contemplated by or consistent with the related Co-Lender Agreement:
(i) to make monthly remittances to the related Non-Trust Loan
Noteholder(s) and to the Trust in accordance with the related Co-Lender
Agreement, such remittances to the Trust to be made to the Collection
Account;
(ii) to reimburse any Fiscal Agent, the Trustee and itself, in
that order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
related Combination Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, such Fiscal Agent's, the Trustee's and the Master
Servicer's right to reimbursement pursuant to this clause (ii) with respect
to any P&I Advance being limited to amounts that represent (or, upon
distribution would represent) Late Collections of interest (net of related
Master Servicing Fees) and principal received in respect of the related
Combination Mortgage Loan or any successor REO Mortgage Loan with respect
thereto;
(iii) subject to Section 3.11(e), to pay to itself and/or the
holder of the Excess Servicing Strip earned and unpaid Master Servicing
Fees in respect of the subject Loan Combination and/or any successor REO
Loans with respect thereto, the Master Servicer's right to payment pursuant
to this clause (iii) with respect thereto being limited to amounts received
on or in respect of such Loan Combination (whether in the form of payments
(including cure payments), Liquidation Proceeds or Insurance Proceeds) or
such successor REO Loans (whether in the form of REO Revenues, Liquidation
Proceeds or Insurance Proceeds), as the case may be, that are allocable as
a recovery of interest thereon;
(iv) if any ShopKo Portfolio Non-Trust Loan is securitized as
part of a rated commercial mortgage securitization transaction, (A) to
reimburse any master servicer, trustee or other appropriate party with
respect to such securitization transaction for any delinquency advance
(comparable to a P&I Advance) made thereby with respect to such Non-Trust
Loan or any successor REO Loan with respect thereto, such master
servicer's, trustee's or other appropriate party's right to reimbursement
pursuant to this clause (iv)(A) with respect to any such delinquency
advance being limited to amounts that represent late payments of interest
(net of related Master Servicing Fees) and principal received in respect of
the related ShopKo Portfolio Non-Trust Loan or any successor REO Loan with
respect thereto, and (B) at or after
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such time as the Master Servicer reimburses such master servicer, trustee
or other appropriate party for such delinquency advance, to pay it any
unpaid interest accrued on such delinquency advance in accordance with the
pooling and servicing agreement governing such securitization transaction,
such master servicer's, trustee's or other appropriate party's right to
payment pursuant to this clause (iv)(B) with respect to any interest on any
such delinquency advance being limited to such collections on the ShopKo
Portfolio Loan Combination or any related REO Property as are otherwise
distributable to the related ShopKo Portfolio Non-Trust Loan Noteholder
with respect to such securitized ShopKo Portfolio Non-Trust Loan or any
successor REO Loan with respect thereto;
(v) subject to Section 3.11(e), to pay the Special Servicer (or,
if applicable, a predecessor Special Servicer) earned and unpaid Special
Servicing Fees, Workout Fees and/or Liquidation Fees in respect of the
subject Loan Combination or any successor REO Loans with respect thereto in
the amounts provided in Section 3.11(c) and out of the collections on such
Loan Combination or any related REO Property as is contemplated by or
consistent with the related Co-Lender Agreement;
(vi) to reimburse any Fiscal Agent, the Trustee, the Special
Servicer or itself, in that order, for any unreimbursed Servicing Advances
in respect of the subject Loan Combination or any related REO Property,
such Fiscal Agent's, the Trustee's, the Special Servicer's and the Master
Servicer's respective rights to reimbursement pursuant to this clause (vi)
with respect to any Servicing Advance being limited to payments (including
cure payments) made with respect to the item covered by such Servicing
Advance, or to Liquidation Proceeds, Insurance Proceeds and, if applicable,
REO Revenues received in respect of such Loan Combination or any related
REO Property;
(vii) at or after such time as the Master Servicer reimburses any
Fiscal Agent, the Trustee, the Special Servicer or itself, in that order,
for any unreimbursed Advance in respect of the subject Loan Combination
(including the related Combination Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, specifically) or any related REO
Property pursuant to clause (ii) or (vi) above, Section 3.03 or Section
3.05(a), to pay such Fiscal Agent, the Trustee, the Special Servicer or
itself, as the case may be, in that order, any unpaid interest accrued and
payable thereon in accordance with Section 3.03(d) or 4.03(d), as
applicable, the Master Servicer's, Special Servicer's, Trustee's and/or
such Fiscal Agent's right to payment pursuant to this clause (vii) with
respect to interest on any Advance being permitted to be satisfied out of
collections on the subject Loan Combination or any related REO Property as
is contemplated by or consistent with the related Co-Lender Agreement;
provided that interest on P&I Advances with respect to the ShopKo Portfolio
Mortgage Loan or any successor REO Mortgage Loan with respect thereto shall
be limited to such collections on the ShopKo Portfolio Loan Combination or
any related REO Property as are otherwise distributable to the Trust with
respect to the ShopKo Portfolio Mortgage Loan or any successor REO Mortgage
Loan with respect thereto;
(viii) to pay for costs and expenses incurred by the Trust Fund
pursuant to the first sentence of Section 3.12(a), with respect to the
related Mortgaged Property, such payment to be made out of such collections
on the subject Loan Combination or any related REO Property as is
contemplated by or consistent with the related Co-Lender Agreement;
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(ix) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in such Loan Combination Custodial Account as
provided in Section 3.06(b), but only to the extent of the Net Investment
Earnings with respect to such Loan Combination Custodial Account for any
Collection Period, and (B) any Prepayment Interest Excess with respect to
the related Combination Mortgage Loan;
(x) to pay for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18(b), 4.03(c) or 9.01, to the extent such costs and expenses
relate to the subject Loan Combination and/or the related Mortgaged
Property, such payment to be made out of such collections on such Loan
Combination or any related REO Property as is contemplated by or consistent
with the related Co-Lender Agreement;
(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, to the extent such amounts relate to the subject Loan
Combination and/or the related Mortgaged Property, such payment to be made
out of such collections on the subject Loan Combination or any related REO
Property as is contemplated by or consistent with the related Co-Lender
Agreement;
(xii) to pay for (A) the advice of counsel and tax accountants
contemplated by Section 3.17(a), (B) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b)(ii), 3.20(d) and 11.02(a), (C) the cost of
an Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of Certificateholders, (D) the cost of recording the
related Co-Lender Agreement and any required opinion of counsel related
thereto and (E) any rating confirmations with respect to related Loan
Combination and any related REO Property that are not otherwise payable by
the related Mortgagor or a party to this Agreement but, in the case of each
of (A), (B) and (C) preceding, only to the extent such amounts relate to
the subject Loan Combination and/or the related Mortgaged Property, any
such payments to be made out of such collections on the subject Loan
Combination or any related REO Property to the extent contemplated by or
consistent with the related Co-Lender Agreement;
(xiii) to pay itself, the Special Servicer, the related Mortgage
Loan Seller, the Majority Controlling Class Certificateholder, a related
Non-Trust Loan Noteholder or any other Person, as the case may be, with
respect to the related Combination Mortgage Loan, if previously purchased
or otherwise removed from the Trust Fund by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of purchase
or removal, and, in the case of a replacement of a Mortgage Loan by a
Qualified Substitute Mortgage Loan or Loans, all Periodic Payments due with
respect to such Qualified Substitute Mortgage Loan(s) during or prior to
the month of substitution, in accordance with Section 2.03(c);
(xiv) to pay the cost of any Environmental Assessment or any
remedial, corrective or other action pursuant to Section 3.09(c), to the
extent such costs relate to the subject Loan Combination and/or the related
Mortgaged Property, such payment to be made out of such collections on the
subject Loan Combination or any related REO Property as is contemplated by
or consistent with the related Co-Lender Agreement;
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(xv) to pay any amount that, if made as a Servicing Advance in
respect of the related Combination Mortgage Loan, would constitute a
Nonrecoverable Servicing Advance, provided that the Master Servicer (or, if
the related Combination Mortgage Loan is a Specially Serviced Mortgage Loan
or if the related Mortgaged Property has become an REO Property, the
Special Servicer) determines that such payment would be in the best
interests of the Certificateholders and the related Non-Trust Loan
Noteholder(s), as a collective whole, pursuant to Section 3.03(c);
(xvi) to withdraw any amounts deposited in error;
(xvii) to withdraw any other amounts that this Agreement or the
related Co-Lender Agreement expressly provides may be withdrawn from such
Loan Combination Custodial Account; and
(xviii) to clear and terminate such Loan Combination Custodial
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 basis when appropriate, in connection with any
withdrawal from a Loan Combination Custodial Account pursuant to the preceding
paragraph and such records shall be sufficient to determine the amounts
attributable to REMIC I.
The Master Servicer shall, as and when required by any related
Co-Lender Agreement (or, in the absence of any express provisions therein
regarding timing, on or before 1:30 PM (New York City time) on each P&I Advance
Date) remit to the Trust and the related Non-Trust Loan Noteholder(s) such
amounts as are distributable in respect of any Combination Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto) and the related Non-Trust
Loan(s) (or any successor REO Non-Trust Loan(s) with respect thereto),
respectively, pursuant to the related Co-Lender Agreement, such remittances to
the Trust to be made to the Collection Account and such remittances to each
related Non-Trust Loan Noteholder to be made to the account designated by such
Non-Trust Loan Noteholder pursuant to the related Co-Lender Agreement. Late
remittances to a Non-Trust Loan Noteholder may be accompanied by interest
thereon only as and to the extent required under the related Co-Lender
Agreement.
The Master Servicer shall pay to the Special Servicer, the Trustee or
any Fiscal Agent on each P&I Advance Date from a Loan Combination Custodial
Account amounts permitted to be paid pursuant to the related Co-Lender Agreement
to the Special Servicer, the Trustee or such Fiscal Agent therefrom promptly
upon receipt of a certificate of a Servicing Officer of the Special Servicer or
of a Responsible Officer of the Trustee or such Fiscal Agent describing the item
and amount to which the Special Servicer, the Trustee or such Fiscal Agent, as
the case may be, 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 with
respect to any Loan Combination or any Loan Combination REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of substantiating
any request for withdrawal from the related Loan Combination Custodial Account.
The Trustee and any Fiscal Agent shall similarly keep and maintain separate
accounting with respect to any Loan Combination or any related Loan Combination
REO Property, on a loan-by-loan and property-by-property basis, for the purpose
of substantiating any request for withdrawal from the related Loan Combination
Custodial Account for reimbursements of Advances or interest thereon.
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If and to the fullest extent that it is permitted to do so pursuant to
a Co-Lender Agreement, the Master Servicer shall, consistent with the Servicing
Standard, seek payment from (or out of amounts otherwise payable to) the related
Non-Trust Loan Noteholder(s) to cover (or to reimburse the Trust for the payment
of) any cost or expense, including the reimbursement of Advances and the payment
of interest thereon, with respect to a Loan Combination or any related Loan
Combination REO Property that was not (but, subject to available funds, would
have been permitted to be) paid out of amounts otherwise payable to such
Non-Trust Loan Noteholder(s).
SECTION 3.06 Investment of Funds in the Servicing Accounts, Reserve
Accounts, Collection Account, Interest Reserve Account,
Distribution Account, Loan Combination Custodial
Accounts, Gain-on-Sale Reserve Account, Additional
Interest Account and REO Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Collection
Account or a Loan Combination Custodial Account (each, for purposes of this
Section 3.06, an "Investment Account"), the Special Servicer may direct in
writing any depository institution maintaining an REO Account (also, for
purposes of this Section 3.06, an "Investment Account"), and the Trustee may
direct in writing any depository institution maintaining the Distribution
Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account or the
Additional Interest Account (also, for purposes of this Section 3.06, an
"Investment Account") to invest, or if it is such depository institution, may
itself invest, the funds held therein only in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
no later than the Business Day immediately preceding the next succeeding date on
which such funds are required to be withdrawn from such account pursuant to this
Agreement. Funds held in the Distribution Account, the Additional Interest
Account and the Gain-on-Sale Reserve Account may remain uninvested. All
Permitted Investments of funds in an Investment Account 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). The
Master Servicer on behalf of the Trustee for the benefit of Certificateholders
(with respect to Permitted Investments of amounts in the Servicing Accounts, the
Reserve Accounts or the Collection Account) or the benefit of the
Certificateholders and the related Non-Trust Loan Noteholder(s) (with respect to
Permitted Investments of amounts in a Loan Combination Custodial Account), the
Special Servicer on behalf of the Trustee for the benefit of Certificateholders
(with respect to Permitted Investments of amounts in the Pool REO Account) or
the benefit of the Certificateholders and the related Non-Trust Loan
Noteholder(s) (with respect to Permitted Investments of amounts in a Loan
Combination REO Account) and the Trustee (with respect to Permitted Investments
of amounts in the Distribution Account, the Interest Reserve Account, the
Gain-on-Sale Reserve Account or the Additional Interest Account) for the benefit
of the Certificateholders, shall (and the Trustee hereby designates the Master
Servicer and the Special Servicer, with respect to any Investment Account
maintained by them, and itself, with respect to the Distribution Account, the
Interest Reserve Account, the Additional Interest Account and the Gain-on-Sale
Reserve Account, as applicable, as the Person that shall) maintain continuous
possession of any Permitted Investment that is either (i) a "certificated
security," as such term is defined in the UCC, or (ii) other property in which a
secured party may perfect its security interest by possession under the UCC or
any other applicable law. Possession of any such Permitted Investment by the
Master Servicer, the Special Servicer or the Trustee shall constitute possession
by the Trustee, as secured party, for purposes of Section 9-313 of the UCC and
any other applicable law. If amounts on deposit in an Investment Account are at
any time invested in a Permitted Investment payable on demand, the Master
Servicer (with respect to Permitted Investments of amounts in the Collection
Account, the Servicing Accounts,
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any Loan Combination Custodial Account and the Reserve Accounts), the Special
Servicer (with respect to Permitted Investments of amounts in the REO Accounts)
or the Trustee (with respect to Permitted Investments of amounts in the
Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve
Account and the Additional Interest Account) 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, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in any of the Servicing Accounts, the Reserve Accounts, the Collection Account
or any Loan Combination Custodial Account, interest and investment income
realized on funds deposited therein, to the extent of the related Net Investment
Earnings, if any, for each Collection Period and, in the case of a Reserve
Account or a Servicing Account, to the extent not otherwise payable to the
related Mortgagor in accordance with applicable law or the related Serviced Loan
documents, shall be for the sole and exclusive benefit of the Master Servicer
and shall be subject to its withdrawal at the end of such Collection Period.
Whether or not the Special Servicer directs the investment of funds in any REO
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for each Collection Period,
shall be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal at the end of such Collection Period. Whether or not
the Trustee directs the investment of funds in the Distribution Account, the
Interest Reserve Account, the Additional Interest Account or the Gain-on-Sale
Reserve Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each
Distribution Date, shall be for the sole and exclusive benefit of the Trustee
and shall be subject to its withdrawal on such Distribution Date. If any loss
shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account, the Master Servicer (in the case of the Servicing Accounts,
the Reserve Accounts, the Collection Account and any Loan Combination Custodial
Account, but excluding any Servicing Accounts and Reserve Accounts containing
amounts invested solely for the benefit of, and at the direction of, the
Mortgagor under the terms of the Serviced Loan or applicable law), the Special
Servicer (in the case of the REO Accounts) and the Trustee (with respect to
Permitted Investments of amounts in the Distribution Account, the Interest
Reserve Account, the Additional Interest Account and the Gain-on-Sale Reserve
Account) shall promptly deposit therein from its own funds, without right of
reimbursement, no later than, in the case of the Master Servicer and Special
Servicer, the end of the Collection Period during which such loss was incurred,
and in the case of the Trustee, no later than 12:00 noon, New York City time, on
the subject Distribution Date, the amount of the Net Investment Loss, if any,
for such Collection Period or such Distribution Date, as the case may be;
provided that none of the Master Servicer, the Special Servicer or the Trustee
shall be required to deposit any loss on an investment of funds in an Investment
Account if such loss is incurred solely as a result of the insolvency of the
federal or state chartered depository institution or trust company that holds
such Investment Account, so long as such depository institution or trust company
satisfied the qualifications set forth in the definition of Eligible Account at
the time such investment was made.
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(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 and the Trustee, the Special Servicer or the Master Servicer fails to
deposit any losses with respect to such Permitted Investment pursuant to Section
3.06(b), the Trustee may (or, in the event of a default by the Trustee, the
Master Servicer or Special Servicer shall) and, subject to Section 8.02, upon
the request of Holders of Certificates entitled to not less than 25% 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.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Master Servicer (with respect to Serviced Loans) and the
Special Servicer (with respect to REO Properties) shall use reasonable efforts
to require the related Mortgagor to maintain or, consistent with the Servicing
Standard and to the extent that the Trust has an insurable interest and the
subject coverage, except as provided below with respect to insurance against
terrorist or similar acts, is available at commercially reasonable rates,
otherwise cause to be maintained for each Mortgaged Property all insurance
coverage as is required under the related Mortgage; provided that, if and to the
extent that any such Mortgage permits the holder thereof any discretion (by way
of consent, approval or otherwise) as to the insurance coverage that the related
Mortgagor is required to maintain, the Master Servicer shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the related
Mortgagor shall be required to exercise its reasonable best efforts to obtain
the required insurance coverage from Qualified Insurers and required insurance
coverage obtained by the Master Servicer shall be from Qualified Insurers. The
cost of any such insurance coverage obtained by either the Master Servicer or
the Special Servicer shall be a Servicing Advance to be paid by the Master
Servicer pursuant to Section 3.03. The Majority Controlling Class
Certificateholder may request that earthquake insurance be secured for one or
more Mortgaged Properties at the expense of the Majority Controlling Class
Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also
cause to be maintained for each REO Property no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage; provided that
all such insurance shall be obtained from Qualified Insurers. All such insurance
policies maintained by the Master Servicer or the Special Servicer (i) shall
contain (if they insure against loss to property and do not relate to an REO
Property) a "standard" mortgagee clause, with loss payable to the Trustee or the
Master Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Serviced Loans); (ii) shall be in the name of the Special Servicer
(in the case of insurance maintained in respect of REO Properties), on behalf of
the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice
to the insured party; (iv) shall include coverage in an amount not less than the
lesser of (A) the full replacement cost of the improvements on the subject
Mortgaged Property or REO Property, as applicable, or (B) the outstanding
principal balance owing on the related Serviced Loan or REO Loan, as applicable,
and in any event, the amount necessary to avoid the operation of any
co-insurance provisions; (v) shall include a replacement cost endorsement
providing no deduction for depreciation (unless such endorsement is not
permitted under the related Serviced Loan documents); (vi) shall
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include such other insurance, including, to the extent available at commercially
reasonable rates, earthquake insurance, where applicable, as required under the
applicable Mortgage or other Serviced Loan document; and (vii) in each case such
insurance shall be issued by an insurer authorized under applicable law to issue
such insurance. Any amounts collected by the Master Servicer or the Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in, as applicable, the Collection Account, subject to
withdrawal pursuant to Section 3.05(a), or any related Loan Combination
Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the
case of amounts received in respect of a Serviced Loan, or in the applicable REO
Account, subject to withdrawal pursuant to Section 3.16(c), in the case of
amounts received in respect of an REO Property. Any cost incurred by the Master
Servicer or the Special Servicer in maintaining any such insurance shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to unpaid principal balance of the
related Serviced Loan, notwithstanding that the terms of the related Serviced
Loan so permit.
Notwithstanding the foregoing, subject to Section 6.11 and Section
6.12, in each case as and if applicable, the Master Servicer or Special
Servicer, as applicable, will not be required to maintain, and shall not cause a
Mortgagor to be in default with respect to the failure of the related Mortgagor
to obtain, fire and extended perils casualty insurance which does not contain
any carve-out for terrorist or similar acts, if and only if, the Special
Servicer, in consultation with the Controlling Class Representative, has
determined in accordance with the Servicing Standard that either (i) such
insurance is not available at any rate or (ii) such insurance is not available
at commercially reasonably rates and that such hazards are not at the time
commonly insured against for properties similar to the subject Mortgaged
Property and located in or around the region in which the subject Mortgaged
Property is located; provided, however, that the Controlling Class
Representative shall not have more than three (3) Business Days to respond to
the Special Servicer's request for consultation; and provided, further, that
upon the Special Servicer's determination consistent with the Servicing
Standard, that exigent circumstances do not allow the Special Servicer to
consult with the Controlling Class Representative, the Special Servicer shall
not be required to do so; and provided, further, that, during the period that
the Special Servicer is evaluating such insurance hereunder, the Master Servicer
shall not be liable for any loss related to its failure to require the Mortgagor
to maintain terrorism insurance and shall not be in default of its obligations
hereunder as a result of such failure. The Special Servicer shall promptly
notify the Master Servicer of each determination under this paragraph.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or force
placed policy insuring against hazard losses on all of the Serviced Loans and/or
REO Properties that it is required to service and administer, then, to the
extent such policy (i) is obtained from a Qualified Insurer and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties and/or REO Properties. The Master
Servicer and the Special Servicer shall bear the cost of any premium payable in
respect of such blanket policy (other than blanket policies specifically
obtained for Mortgaged Properties or REO Properties) without right of
reimbursement; provided that if the Master Servicer or the Special Servicer, as
the case may be, causes any Mortgaged Property or REO Property to be covered by
such blanket policy, the incremental costs of such insurance applicable to such
Mortgaged Property or REO Property shall constitute, and be
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reimbursable as, a Servicing Advance to the extent that, except with respect to
an REO Property, such blanket policy provides insurance that the related
Mortgagor has failed to maintain. Such blanket policy or force placed policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
a hazard insurance policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses that would have been covered by
such policy, promptly deposit into the Collection Account (or, in the case of a
Loan Combination Mortgaged Property or any Loan Combination REO Property, into
the related Loan Combination Custodial Account), in accordance with Section
3.04, from its own funds the amount not otherwise payable under the blanket
policy or force placed policy, as the case may be, because of such deductible
clause, to the extent the amount of such deductible exceeds the deductible
permitted under the related Mortgage Loan documents or, if the related Mortgage
Loan documents are silent regarding a permitted deductible, to the extent the
amount of the deductible under the blanket policy or force placed policy, as the
case may be, exceeds a customary deductible for the particular type of
individual hazard insurance policy. The Master Servicer or the Special Servicer,
as appropriate, shall prepare and present, on behalf of itself, the Trustee and
Certificateholders (and, in the case of a Loan Combination, the related
Non-Trust Loan Noteholder(s)), claims under any such blanket policy or force
placed policy in a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the 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 in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause the qualification, downgrading or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the 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 the Special Servicer, as the case may be. Such fidelity bond shall provide
for ten (10) days' written notice to the Trustee prior to any cancellation.
Each of the Master Servicer and the 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 in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans, or in such other
form and amount as would not cause the qualification, downgrade or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and 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 the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide for ten (10) days' written notice to the Trustee prior to cancellation.
The Master Servicer and the Special Servicer shall each cause the Trustee to be
an additional loss payee on any policy currently in place or procured pursuant
to the requirements of this Section 3.07(c).
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For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or, in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A" or the equivalent by all of the Rating Agencies (or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this subsection.
(d) Within 90 days of the Closing Date, with respect to each of the
Mortgage Loans identified on Schedule III attached hereto as being covered by a
lender's environmental insurance policy, the Master Servicer shall notify the
insurer under such environmental insurance policy and take all other action
necessary for the Trustee, on behalf of the Certificateholders (and, in the case
of a Loan Combination, the related Non-Trust Loan Noteholder(s)), to be an
insured (and, for the Master Servicer, on behalf of the Trust Fund (and in the
case of a Loan Combination, the related Non-Trust Loan Noteholder(s)), to make
claims) under such environmental insurance policy. In the event that the Master
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any environmental insurance policy in respect of
any Serviced Loan covered thereby, the Master Servicer shall, in accordance with
the terms of such environmental insurance policy and the Servicing Standard,
timely make a claim thereunder with the appropriate insurer and shall take such
other actions in accordance with the Servicing Standard which are necessary
under such environmental insurance policy in order to realize the full value
thereof for the benefit of the Certificateholders (and, in the case of a Loan
Combination, the related Non-Trust Loan Noteholder(s)), as a collective whole.
Any legal fees, premiums or other out-of-pocket costs incurred in accordance
with the Servicing Standard in connection with any such claim under an
environmental insurance policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance. With respect to each environmental
insurance policy that relates to one or more Mortgage Loans, the Master Servicer
shall review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy to realize the full value
thereof for the benefit of the Certificateholders (and, in the case of a Loan
Combination, the related Non-Trust Loan Noteholder(s)) in the event the Master
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
In the event that the Master Servicer receives notice of any
termination of any environmental insurance policy that relates to one or more
Serviced Loans, the Master Servicer shall, within five (5) Business Days after
receipt of such notice, notify the Special Servicer, the Controlling Class
Representative, the Rating Agencies and the Trustee and, in the case of a Loan
Combination, the related Non-Trust Loan Noteholder(s) of such termination in
writing. Upon receipt of such notice, the Master Servicer with respect to
non-Specially Serviced Mortgage Loans, and the Special Servicer with respect to
Specially Serviced Mortgage Loans, shall address such termination in accordance
with Section 3.07(a) in the same manner as it would the termination of any other
Insurance Policy required under the related Mortgage Loan documents. Any legal
fees, premiums or other out-of-pocket costs incurred in accordance with the
Servicing Standard in connection with a resolution of such termination of an
environmental insurance policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance.
SECTION 3.08 Enforcement of Alienation Clauses.
(a) Upon receipt of any request for a waiver in respect of a
due-on-sale (including, without limitation, a sale of a Mortgaged Property (in
full or in part) or a sale, transfer, pledge or
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hypothecation of direct or indirect interests in a Mortgagor or its owners) or
due-on-encumbrance (including, without limitation, any mezzanine financing of a
Mortgagor or a Mortgaged Property or a sale or transfer of preferred equity in a
Mortgagor or its owners) provision with respect to a Serviced Loan or a request
by a Mortgagor for a determination with respect to a Serviced Loan which by its
terms permits transfer, assumption or further encumbrance without lender consent
upon the satisfaction of certain conditions, that such conditions have been
satisfied, the Master Servicer (in the case of non-Specially Serviced Loans) or
the Special Servicer (in the case of Specially Serviced Loans), as applicable,
shall analyze such request, shall prepare all written materials in connection
with such analysis, and shall, if it approves such request in accordance with
the Servicing Standard, close the related transaction, subject to Section 6.11
and Section 6.12, in each case as and if applicable, and any applicable
intercreditor, co-lender or similar agreement; provided that the Master Servicer
shall not waive any due-on-sale or due-on-encumbrance provision or consent to
any assumption without the consent of the Special Servicer. With respect to all
Serviced Loans, the Special Servicer, on behalf of the Trustee as the mortgagee
of record (or, in the case of a Non-Trust Loan, on behalf of the related
Non-Trust Loan Noteholder), shall, to the extent permitted by applicable law,
enforce the restrictions contained in the related Mortgage on transfers or
further encumbrances of the related Mortgaged Property and on transfers of
interests in the related Mortgagor, unless the Special Servicer has determined,
consistent with the Servicing Standard and subject to Section 6.11 and Section
6.12, that waiver of such restrictions would be in accordance with the Servicing
Standard. Promptly after the Special Servicer has made any such determination,
such servicer shall deliver to the Trustee, the Rating Agencies and each other
party hereto an Officer's Certificate setting forth the basis for such
determination. None of the Master Servicer, the Special Servicer or a
Sub-Servicer on behalf of either of them shall exercise (or, in the case of the
Special Servicer, consent to the Master Servicer exercising) any waiver in
respect of a due-on-encumbrance provision of any Mortgage Loan with respect to
which (i) the aggregate of the Stated Principal Balance of such Mortgage Loan
and the Stated Principal Balance of all other Mortgage Loans that are
cross-collateralized with, cross-defaulted with or have been made to Mortgagors
affiliated with the Mortgagor on such Mortgage Loan, is equal to or in excess of
$20,000,000, (ii) the aggregate of the Stated Principal Balance of such Mortgage
Loan and the Stated Principal Balance of all other Mortgage Loans that are
cross-collateralized with, cross-defaulted with or have been made to Mortgagors
affiliated with the Mortgagor on such Mortgage Loan, are greater than 5% of the
aggregate Stated Principal Balance of all Mortgage Loans or (iii) such Mortgage
Loan is one of the ten (10) largest Mortgage Loans as of the date of the waiver
(by Stated Principal Balance), without receiving prior written confirmation from
each Rating Agency that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned by it to the
Certificates. In addition, none of the Master Servicer, the Special Servicer or
a Sub-Servicer on behalf of either of them shall waive (or, in the case of the
Special Servicer, consent to the Master Servicer waiving) any due-on-sale
provision of any Mortgage Loan with respect to which (i) the aggregate of the
Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance
of all other Mortgage Loans that are cross-collateralized with, cross-defaulted
with or have been made to Mortgagors affiliated with the Mortgagor on such
Mortgage Loan, is equal to or in excess of $35,000,000 (or $20,000,000 with
respect to Xxxxx'x), (ii) the aggregate of the Stated Principal Balance of such
Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that
are cross-collateralized with, cross-defaulted with or have been made to
Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are greater than
5% of the aggregate Stated Principal Balance of all Mortgage Loans or (iii) such
Mortgage Loan is one of the ten (10) largest Mortgage Loans as of the date of
the waiver (by Stated Principal Balance), without receiving prior written
confirmation from each Rating Agency that such action would not result in a
downgrading, qualification or withdrawal of the ratings then assigned to the
Certificates. Any fees charged by the Rating Agencies in connection with
obtaining any written confirmation contemplated in
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the two preceding sentences shall be charged to the Mortgagor unless prohibited
by the related Serviced Loan documents, in which case such fees shall be
Additional Trust Fund Expenses paid out of the Collection Account (or, in the
case of a Loan Combination, shall be paid out of the related Loan Combination
Custodial Account), to the extent that the related Mortgage Loan Seller has not
paid such fees, pursuant to the applicable Mortgage Loan Purchase Agreement,
provided that, if and to the extent that any such Rating Agency fees paid would
result in the failure of any one or more Holder(s) of Regular Certificates to
receive any amount of principal or interest at the related Pass-Through Rate to
which such Holder(s) are entitled (in each case by the time any such amounts are
due and payable to such Holder(s)), then such amounts shall be deemed to have
been distributed to such Holder(s) from REMIC II, as of the time paid and then
paid by such Holder(s) and not by any REMIC Pool. If the Master Servicer (in the
case of non-Specially Serviced Loans) or the Special Servicer (in the case of
Specially Serviced Loans) determines with respect to any Serviced Loan that by
its terms permits transfer, assumption or further encumbrance of a Serviced Loan
or the related Mortgaged Property, as applicable, without lender consent upon
the satisfaction of certain conditions, that such conditions have not been
satisfied, then such servicer shall not permit such transfer, assumption or
further encumbrance. Notwithstanding the foregoing, if the Master Servicer or a
Sub-Servicer on its behalf rejects a Mortgagor's request in connection with a
"due-on-sale" or "due-on-encumbrance" clause under a Serviced Loan as to which
it is reviewing such request in the circumstances specified above in this
paragraph, the Special Servicer will be given the opportunity to review and,
subject to the provisions of this paragraph regarding "due-on-sale" and
"due-on-encumbrance" clauses, determine whether to approve such Mortgagor's
request. As used in this paragraph, the terms "sale", "transfer" and
"encumbrance" include the matters contemplated by the parentheticals in the
first sentence of this paragraph.
(b) If the Master Servicer or Special Servicer, as applicable,
consents subsequent to the Closing Date to the incurrence by the principal(s) of
a Mortgagor under a Serviced Loan of mezzanine financing in accordance with the
related loan documents and enters into an intercreditor agreement, such servicer
(to the extent it is permitted to do so under the related loan documents and
applicable law and in accordance with the Servicing Standard) shall use
reasonable efforts to require the related mezzanine lender to agree to pay a
Liquidation Fee in connection with any purchase right that arises upon a
Serviced Loan default in the event such purchase occurs after the expiration of
60 days from the date the right to purchase arises under such mezzanine
intercreditor agreement. The foregoing sentence shall not operate to modify the
provisions of the preceding paragraph of this Section 3.08(a) regarding
due-on-sale and due-on-encumbrance provisions.
(c) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer (with respect to Mortgage Loans that are not Specially Serviced
Loans (without the Special Servicer's consent) or the Special Servicer (with
respect to Specially Serviced Loans and REO Properties), without any Rating
Agency confirmation as provided in subsection (a) above, may grant a Mortgagor's
request for consent (or, in the case of an REO Property, may consent) to subject
the related Mortgaged Property to an easement or right-of-way for utilities,
access, parking, public improvements or another purpose, and may consent to
subordination of the subject Mortgage Loan to such easement or right-of-way,
provided that the Master Servicer or the Special Servicer, as applicable, shall
have determined in accordance with the Servicing Standard that such easement or
right-of-way shall not materially interfere with the then-current use of the
related Mortgaged Property, the security intended to be provided by such
Mortgage or the related Mortgagor's ability to repay the subject Mortgage Loan,
and will not materially or adversely affect the value of such Mortgaged Property
and that the granting of such consent would not result in an Adverse REMIC
Event.
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SECTION 3.09 Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d), Section 6.11 and Section 6.12, exercise reasonable efforts, consistent
with the Servicing Standard, to foreclose upon or otherwise comparably convert
the ownership of properties securing such of the Serviced Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance all costs and expenses (other than costs or expenses that
would, if incurred, constitute a Nonrecoverable Servicing Advance) incurred by
the Special Servicer in any such proceedings, and shall be entitled to
reimbursement therefor as provided in Section 3.05(a). Nothing contained in this
Section 3.09 shall be construed so as to require the Special Servicer, on behalf
of the Trust Fund (and, in the case of a Loan Combination Mortgaged Property, on
behalf of the related Non-Trust Loan Noteholder(s)), to make a bid on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in excess
of the fair market value of such property, as determined by the Special Servicer
in accordance with the Servicing Standard and in its reasonable and good faith
judgment taking into account, as applicable, among other factors, the period and
amount of any delinquency on the affected Serviced Loan, the occupancy level and
physical condition of the related Mortgaged Property or REO Property, the state
of the local economy, the obligation to dispose of any REO Property within the
time period specified in Section 3.16(a) and the results of any appraisal
obtained pursuant to the following sentence, all such bids to be made in a
manner consistent with the Servicing Standard. If and when the Master Servicer
or the Special Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
defaulted Serviced Loan, whether for purposes of bidding at foreclosure or
otherwise, it may, at the expense of the Trust Fund (and, in the case of a Loan
Combination, at the expense of the related Non-Trust Loan Noteholder(s)), have
an appraisal performed with respect to such property by an Independent Appraiser
or other expert in real estate matters; which appraisal shall take into account,
as applicable, among other factors, the period and amount of any delinquency on
the affected Serviced Loan, the occupancy level and physical condition of the
related Mortgaged Property or REO Property, the state of the local economy, the
obligation to dispose of any related REO Property within the time period
specified in Section 3.16(a), any environmental, engineering or other third
party reports available, and other factors that a prudent real estate appraiser
would consider.
With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to obtain a Required Appraisal (or with respect to any
Mortgage Loan with an outstanding principal balance less than $2,000,000, an
internal valuation performed by the Special Servicer) within 60 days of a
Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an appraisal
meeting the requirements of a Required Appraisal was obtained for such Required
Appraisal Mortgage Loan within the prior 12 months and the Special Servicer has
no actual knowledge of a material adverse change in the condition of the related
Mortgaged Property in which case such appraisal may be a letter update of the
Required Appraisal) and thereafter shall obtain a Required Appraisal (or with
respect to any Mortgage Loan with an outstanding principal balance less than
$2,000,000, and in lieu of an Appraisal, an internal valuation performed by the
Special Servicer) once every 12 months (or sooner if the Special Servicer has
actual knowledge of a material adverse change in the condition of the related
Mortgaged Property) if such Mortgage Loan remains a Required Appraisal Mortgage
Loan. The Special Servicer will deliver a copy of each Required Appraisal (or
letter update or internal valuation) to the Master Servicer, the Controlling
Class Representative and the Trustee (and, in the case of a Loan Combination
Mortgaged Property, the related Non-Trust Loan Noteholder(s)) within ten (10)
Business
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Days of obtaining such Required Appraisal (or letter update or internal
valuation). Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance the cost of such Required Appraisal; provided, however,
that such expense will be subject to reimbursement to the Master Servicer as a
Servicing Advance out of the Collection Account, pursuant to Section 3.05(a) or,
in the case of a Loan Combination, out of the related Loan Combination Custodial
Account, pursuant to Section 3.05(e), as applicable in accordance with Section
3.05.
Notwithstanding the foregoing, in no event shall the Master Servicer
or the Special Servicer obtain an appraisal of any Loan Combination Mortgaged
Property pursuant to this Section 3.09(a) after the related Combination Mortgage
Loan has been paid in full.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which may be withdrawn from the Collection Account
pursuant to Section 3.05(a)) or, in the case of a Loan Combination, if
applicable, from the related Loan Combination Custodial Account pursuant to
Section 3.05(e)) to the effect that the holding of such personal property
as part of the Trust Fund (in the case of a Loan Combination, to the extent
not allocable to the related Non-Trust Loan(s)) will not cause the
imposition of a tax on any REMIC Pool under the REMIC Provisions or cause
any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged Property
by deed in lieu of foreclosure or otherwise, or take any other action with
respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders (or, in the case of a Loan
Combination Mortgaged Property, the Certificateholders and the related Non-Trust
Loan Noteholder(s)), could, in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, made in accordance with the Servicing
Standard, 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 CERCLA or any comparable law (a "potentially responsible party"), unless (as
evidenced by an Officer's Certificate to such effect delivered to the Trustee
that shall specify all of the bases for such determination) the Special Servicer
has previously determined in accordance with the Servicing Standard, and based
on an Environmental Assessment of such Mortgaged Property performed by an
Independent Person who regularly conducts Environmental Assessments and
performed within six (6) months prior to any such acquisition of title or other
action (a copy of which Environmental Assessment shall be delivered to the
Trustee, the Controlling Class Representative and the Master Servicer (and, in
the case of a Loan Combination Mortgaged Property, the related Non-Trust Loan
Noteholder(s)), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the Certificateholders (and, in the case of a Loan Combination
Mortgaged Property, to the related Non-Trust Loan Noteholder(s) as set
forth in the related Co-Lender Agreement) as a collective whole (taking
into account the subordination of any related Non-Trust Loan(s)), on a
present value basis (the
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relevant discounting of anticipated collections that will be distributable
to Certificateholders (and, in the case of a Loan Combination Mortgaged
Property, to the related Non-Trust Loan Noteholder(s)) to be performed at
the related Net Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such actions as are necessary to bring the
Mortgaged Property into compliance therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable
environmental laws and regulations or, if such circumstances or conditions
are present for which any such action could reasonably be expected to be
required, that it would maximize the recovery to the Certificateholders
(and, in the case of a Loan Combination Mortgaged Property, to the related
Non-Trust Loan Noteholder(s)) as a collective whole, on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders (and, in the case of a Loan Combination
Mortgaged Property, to the related Non-Trust Loan Noteholder(s)) to be
performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph
promptly and may conclusively rely on the Environmental Assessment referred to
above in making such determination. The cost of any such Environmental
Assessment, as well as the cost of any remedial, corrective or other further
action contemplated by clause (i) and/or clause (ii) of the preceding paragraph
shall be at the expense of the Trust Fund (except to the extent, in the case of
a Loan Combination Mortgaged Property, that such expense is payable out of the
proceeds of the related Non-Trust Loan(s) pursuant to the related Co-Lender
Agreement and this Agreement, and except with respect to any Environmental
Assessment of a Loan Combination Mortgaged Property ordered after the related
Combination Mortgage Loan has been paid in full); and if any such Environmental
Assessment so warrants, the Special Servicer shall perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (ii) of the preceding paragraph have
been satisfied, the cost of which shall be at the expense of the Trust Fund
(except to the extent, in the case of a Loan Combination Mortgaged Property,
that such expense is payable out of the proceeds of the related Non-Trust
Loan(s) pursuant to the related Co-Lender Agreement and this Agreement, and
except with respect to any Environmental Assessment of a Loan Combination
Mortgaged Property ordered after the related Combination Mortgage Loan has been
paid in full).
(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that any of the conditions set forth in clauses (i) and (ii) thereof
has not been satisfied with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan and there is no breach of a representation or warranty
requiring repurchase under the applicable Mortgage Loan Purchase Agreement, then
(subject to Section 6.11 and Section 6.12) the Special Servicer shall take such
action as is in accordance with the Servicing Standard (other than proceeding
against the Mortgaged Property) and, at such time as it deems appropriate, may,
on behalf of the Trustee, release all or a portion of such Mortgaged Property
from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer, the
Controlling Class Representative and the Trustee (and, in the case of a Loan
Combination Mortgaged Property, the related
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Non-Trust Loan Noteholder(s)) monthly in writing as to any actions taken by the
Special Servicer with respect to any Mortgaged Property that represents security
for a Defaulted Mortgage Loan as to which the environmental testing contemplated
in Section 3.09(c) above has revealed that any of the conditions set forth in
clauses (i) and (ii) thereof has not been satisfied, in each case until the
earlier to occur of satisfaction of all such conditions and release of the lien
of the related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the related Serviced Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment with
respect to a Serviced Loan if it deems advisable.
(g) The Master Servicer shall, with the reasonable cooperation of the
Special Servicer, prepare and file information returns with respect to reports
of foreclosures and abandonments of any Mortgaged Property and the information
returns relating to any Mortgaged Property securing a Serviced Loan required by
Sections 6050J and 6050P of the Code and each year deliver to the Trustee an
Officer's Certificate stating that such reports have been filed. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by Sections 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records, prepared by
a Servicing Officer, of each Final Recovery Determination in respect of any
Serviced Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate (together with the
basis and back-up documentation for the determination) delivered to the Trustee,
the Controlling Class Representative (and, with respect to a Loan Combination or
any related REO Property, the related Non-Trust Loan Noteholder(s)) and the
Master Servicer no later than the third Business Day following such Final
Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other information
and copies of any other documents in its possession with respect to a Specially
Serviced Loan or the related Mortgaged Property.
SECTION 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the Trustee in writing by a certification (which certification shall be in the
form of a Request for Release in the form of Exhibit D-1 attached hereto and
shall be accompanied by the form of a release or discharge and 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 pursuant to Section 3.04(a) have been or will be so
deposited) of a Servicing Officer (a copy of which certification shall be
delivered to the Special Servicer) and shall request delivery to it of the
related Mortgage File. Upon receipt of such certification and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such release or discharge, duly executed. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Collection Account, any Loan Combination Custodial Account or the
Distribution Account.
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(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Collection Account or, if applicable, the related Loan Combination Custodial
Account, pursuant to Section 3.04(a) or Section 3.04(f), as the case may be,
have been or will be so deposited, or that the related Mortgaged Property has
become an REO Property, a copy of the Request for Release shall be released by
the Trustee or related Custodian to the Master Servicer or the Special Servicer,
as applicable.
(c) Within seven (7) Business Days (or within such shorter period (but
no less than three (3) Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee of an exigency) of
the Special Servicer's request therefor, the Trustee shall execute and deliver
to the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying 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.
(d) Consistent with the foregoing, the Master Servicer and the Special
Servicer each shall request from a Non-Trust Loan Noteholder the Mortgage Note
for the related Non-Trust Loan under substantially the same circumstances that
it would request from the Trustee the Mortgage Note for the related Combination
Mortgage Loan and shall retain the same only for so long as servicing and
administration of such Non-Trust Loan requires.
SECTION 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, subject to Section
3.11(e), the Master Servicer shall be entitled to receive the Master Servicing
Fee with respect to each Serviced Loan (including each Specially Serviced Loan)
and REO Loan. As to each such Serviced Loan and REO Loan, the Master Servicing
Fee shall accrue at the related Master Servicing Fee Rate and on the same
principal amount respecting which the related interest payment due on such
Serviced Loan or deemed to be due on such REO Loan is computed and be calculated
on the same interest accrual basis (i.e., an
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Actual/360 Basis or a 30/360 Basis) as such Serviced Loan or REO Loan (or, in
the event of a Principal Prepayment in full or other Liquidation Event with
respect to a Serviced Loan or REO Loan, on the basis of the actual number of
days to elapse from and including the related Due Date to but excluding the date
of such Principal Prepayment or Liquidation Event in a month consisting of 30
days). The Master Servicing Fee with respect to any Serviced Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. Earned
but unpaid Master Servicing Fees shall be payable monthly, on a loan-by-loan
basis, from payments of interest on each Serviced Loan and REO Revenues
allocable as interest on each REO Loan. The Master Servicer, on behalf of itself
and the holder of the related Excess Servicing Strip, shall be entitled to
recover unpaid Master Servicing Fees in respect of any Serviced Loan or REO Loan
out of that portion of related Insurance Proceeds or Liquidation Proceeds
allocable as recoveries of interest, to the extent permitted by Section
3.05(a)(iii) or Section 3.05(e)(iii), as applicable. Subject to the next
paragraph, the right to receive the Master 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.
Notwithstanding anything herein to the contrary, except after the occurrence and
during the continuance of a Wimbledon Place Apartments Material Default, there
will be no Master Servicing Fee with respect to the Wimbledon Place Apartments
Non-Trust Loan.
Notwithstanding anything herein to the contrary, Midland (and its
successors and assigns) may at its option assign or pledge to any third party or
retain for itself the aggregate Excess Servicing Strip for the Mortgage Pool (in
whole but not in part); provided that any assignee or pledgee of the aggregate
Excess Servicing Strip for the Mortgage Pool must be a Qualified Institutional
Buyer or Institutional Accredited Investor (other than a Plan); and provided,
further, that no transfer, sale, pledge or other assignment of the aggregate
Excess Servicing Strip for the Mortgage Pool shall be made unless that transfer,
sale, pledge or other assignment is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws and is otherwise made in accordance with the Securities Act and
such state securities laws; and provided, further, that in the event of any
resignation or termination of Midland, all or any portion of the aggregate
Excess Servicing Strip for the Mortgage Pool may, to protect REMIC I against an
associated increase in expenses, be reduced by the Trustee to the extent
necessary (in the sole discretion of the Trustee) for the Trustee to obtain a
qualified successor Master Servicer (which successor may include the Trustee)
that meets the requirements of Sections 6.04 and 7.02 and that requires market
rate servicing compensation that, in the case of each Mortgage Loan and REO
Mortgage Loan, accrues at a per annum rate greater than the excess of the
related Master Servicing Fee Rate over the then related Excess Servicing Fee
Rate. For the avoidance of doubt, a Sub-Servicer to a Sub-Servicing Agreement
dated the date hereof shall not be deemed to be the holder of an Excess
Servicing Strip with respect to any sub-servicing fee payable thereunder.
Midland and each holder of the aggregate Excess Servicing Strip for the Mortgage
Pool desiring to effect a transfer, sale, pledge or other assignment of the
aggregate Excess Servicing Strip for the Mortgage Pool shall, and Midland hereby
agrees, and each such holder of the aggregate Excess Servicing Strip for the
Mortgage Pool by its acceptance thereof shall be deemed to have agreed, in
connection with any transfer, sale, pledge or other assignment of the aggregate
Excess Servicing Strip for the Mortgage Pool effected by such Person, to
indemnify the Certificateholders, the Trust, the Depositor, the Underwriters,
the Trustee, the Master Servicer, the Certificate Registrar and the Special
Servicer against any liability that may result if such transfer, sale, pledge or
other assignment is not exempt from registration and/or qualification under the
Securities Act or other applicable federal and state securities laws or is not
made in accordance with such federal and state laws or in accordance with the
foregoing provisions of this paragraph. By its acceptance of the aggregate
Excess Servicing Strip for the Mortgage Pool, the holder thereof shall be deemed
to have agreed (i) to keep all information relating
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to the Trust and the Trust Fund and made available to it by the Master Servicer
confidential (except as permitted pursuant to clause (iii) below or, in the case
of the Master Servicer, as contemplated hereby in the performance of its duties
and obligations hereunder), (ii) not to use or disclose such information in any
manner that could result in a violation of any provision of the Securities Act
or other applicable securities laws or that would require registration of the
aggregate Excess Servicing Strip for the Mortgage Pool or any Non-Registered
Certificate pursuant to the Securities Act, and (iii) not to disclose such
information, and to cause its officers, directors, partners, employees, agents
or representatives not to disclose such information, in any manner whatsoever,
in whole or in part, to any other Person other than such holder's auditors,
legal counsel and regulators, except to the extent such disclosure is required
by law, court order or other legal requirement or to the extent such information
is of public knowledge at the time of disclosure by such holder or has become
generally available to the public other than as a result of disclosure by such
holder; provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
aggregate Excess Servicing Strip for the Mortgage Pool if, and only if, such
Person (x) confirms in writing such prospective acquisition and (y) agrees in
writing to keep such information confidential, not to use or disclose such
information in any manner that could result in a violation of any provision of
the Securities Act or other applicable securities laws or that would require
registration of the aggregate Excess Servicing Strip for the Mortgage Pool or
any Non-Registered Certificates pursuant to the Securities Act and not to
disclose such information, and to cause its officers, directors, partners,
employees, agents or representatives not to disclose such information, in any
manner whatsoever, in whole or in part, to any other Person other than such
Persons' auditors, legal counsel and regulators. From time to time following any
transfer, sale, pledge or assignment of the aggregate Excess Servicing Strip for
the Mortgage Pool, the Person then acting as the Master Servicer shall pay, out
of each amount paid to such Master Servicer as Master Servicing Fees with
respect to any Mortgage Loan or REO Mortgage Loan, as the case may be, the
Excess Servicing Strip attributable to such Mortgage Loan or REO Mortgage Loan
to the holder of the aggregate Excess Servicing Strip for the Mortgage Pool
within one (1) Business Day following the payment of such Master Servicing Fees
to the Master Servicer, in each case in accordance with payment instructions
provided by such holder in writing to the Master Servicer. The holder of the
aggregate Excess Servicing Strip for the Mortgage Pool shall not have any rights
under this Agreement except as set forth in the preceding sentences of this
paragraph. The Master Servicer shall pay the Excess Servicing Strip for any
Mortgage Loan or REO Mortgage Loan to the holder of the aggregate Excess
Servicing Strip for the Mortgage Pool (i.e., Midland 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 for such Mortgage Loan or REO Mortgage Loan, as the
case may be, hereunder, notwithstanding any resignation or termination of
Midland hereunder (subject to reduction as provided above this paragraph).
(b) Subject to Section 3.11(e), additional servicing compensation in
the form of (i) all late payment charges, Penalty Interest, assumption
application fees, modification fees for Serviced Loan modifications made by the
Master Servicer pursuant to Section 3.20(h), defeasance fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees (excluding Prepayment Premiums or Yield
Maintenance Charges), in each case to the extent actually paid by a Mortgagor
with respect to a Serviced Loan and, with respect to assumption application
fees, late payment charges and Penalty Interest, accrued during the time that
such Serviced Loan was not a Specially Serviced Loan, and (ii) 50% of any
assumption fee to the extent actually paid by a Mortgagor with respect to any
Serviced Loan that is not a Specially Serviced Loan, may be retained by the
Master Servicer and are not required to be deposited in the Collection Account
or, if applicable, a Loan Combination Custodial Account; provided that the
Master Servicer's right to receive late payment
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charges and Penalty Interest pursuant to clause (i) above shall be limited to
the portion of such items that have not been applied to pay interest on Advances
and property inspection costs as provided in Sections 3.03(d), 3.12(a) and
4.03(d) or to reimburse the Trust Fund for previously incurred Additional Trust
Fund Expenses pursuant to this Section 3.11(b). To the extent the Master
Servicer receives late payment charges or Penalty Interest on a Serviced Loan
for which interest on Advances or inspection costs pursuant to Section 3.12(a)
are outstanding or any Additional Trust Fund Expenses related to such Serviced
Loan have been incurred since the Closing Date immediately preceding the receipt
of such late payment charges or Penalty Interest and not previously reimbursed
to the Trust Fund, the Master Servicer shall deposit in the Collection Account,
by the end of the Collection Period in which such late payment charges or
Penalty Interest, as the case may be, was received (or, if later, upon its
receipt from the Special Servicer), an amount equal to the lesser of (i) the
amount of late payment charges or Penalty Interest received on such Serviced
Loan or (ii) the sum of (A) the amount of interest on Advances related to such
Serviced Loan then due and payable hereunder in accordance with Section 3.03(d)
and/or (except with respect to any Non-Trust Loan or any successor REO Non-Trust
Loan with respect thereto) Section 4.03(d), (B) the amount of any unpaid
inspection costs pursuant to Section 3.12(a) related to such Serviced Loan and
(C) without duplication, the amount of Additional Trust Fund Expenses
(including, without limitation, interest on Advances and inspection costs
pursuant to Section 3.12(a)) related to such Serviced Loan incurred since the
Closing Date and not previously reimbursed to the Trust Fund. To the extent that
the Master Servicer is not entitled to late payment charges or Penalty Interest
pursuant to the immediately preceding sentence, the Master Servicer shall
deposit such late payment charges and Penalty Interest in the Collection
Account. Subject to the two preceding sentences, Penalty Interest or late
payment charges in respect of any Serviced Loan that have accrued during the
period when the related Serviced Loan is not a Specially Serviced Loan shall be
additional compensation to the Master Servicer even if collected during the
period when the related Serviced Loan is a Specially Serviced Loan. The Master
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) Prepayment Interest Excesses on the Mortgage Loans (subject to Section
3.11(e)); (ii) interest or other income earned on deposits in the Collection
Account and any Loan Combination Custodial Account, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to each such account for each Collection Period), and (iii) to the
extent not required to be paid to any Mortgagor under applicable law or the
terms of the related Serviced Loan, any interest or other income earned on
deposits in the Reserve Accounts and Servicing Accounts maintained thereby (but
only to the extent of the Net Investment Earnings, if any, with respect to each
such account for each Collection Period).
The Master Servicer shall be required to pay out of its own funds all
allocable overhead and all general and administrative expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of its Sub-Servicers and
the premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Collection Account or, with respect to a Loan Combination, out of the
related Loan Combination Custodial Account, and the Master Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement. The Master Servicer shall not waive or agree to any discount of any
portion of assumption fees to which the Special Servicer is entitled without the
Special Servicer's prior written consent.
(c) As compensation for its activities hereunder, subject to Section
3.11(e), the Special Servicer shall be entitled to receive the Special Servicing
Fee with respect to each Specially Serviced Loan and each REO Loan that relates
to an REO Property. As to each such Specially Serviced
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Loan and each such REO Loan that relates to an REO Property, the Special
Servicing Fee shall accrue at the Special Servicing Fee Rate and on the same
principal amount respecting which the related interest payment due on such
Specially Serviced Loan or deemed to be due on such REO Loan is computed and be
calculated on the same interest accrual basis (i.e., an Actual/360 Basis or a
30/360 Basis) as such Specially Serviced Loan or such REO Loan (or, in the event
of a Principal Prepayment in full or other Liquidation Event with respect to a
Specially Serviced Loan or REO Loan, on the basis of the actual number of days
to elapse from and including the related Due Date to but excluding the date of
such Principal Prepayment or Liquidation Event in a month consisting of 30
days). The Special Servicing Fee with respect to any Specially Serviced Loan or
any REO Loan that relates to an REO Property shall cease to accrue as of the
date a Liquidation Event occurs in respect thereof or it becomes a Corrected
Loan. Subject to Section 3.05(c), earned but unpaid Special Servicing Fees shall
be payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Collection Account pursuant to Section 3.05(a).
Notwithstanding anything herein to the contrary, except after the occurrence and
during the continuance of a Wimbledon Place Apartments Material Default, there
will be no Special Servicing Fee with respect to the Wimbledon Place Apartments
Non-Trust Loan.
As further compensation for its activities hereunder, subject to
Section 3.11(e), the Special Servicer shall be entitled to receive the Workout
Fee with respect to each Corrected Loan, so long as such loan remains a
Corrected Loan. As to each Corrected Loan, the Workout Fee shall be payable out
of, and shall be calculated by application of the Workout Fee Rate to, each
collection of interest (other than Additional Interest and Penalty Interest) and
principal received on such Serviced Loan for so long as it remains a Corrected
Loan. The Workout Fee with respect to any Corrected Loan will cease to be
payable if a Servicing Transfer Event occurs with respect thereto or if the
related Mortgaged Property becomes an REO Property; provided that a new Workout
Fee would become payable if and when such Serviced Loan again became a Corrected
Loan. If the Special Servicer is terminated or resigns, it will retain the right
to receive any and all Workout Fees payable with respect to any Specially
Serviced Loan that became a Corrected Loan during the period that it acted as
Special Servicer and remained a Corrected Loan at the time of its termination or
resignation or if the Special Servicer resolved the circumstances and/or
conditions (including by way of a modification of the related Serviced Loan
documents) causing the Serviced Loan to be a Specially Serviced Loan, but the
Serviced Loan had not as of the time the Special Servicer is terminated or
resigns become a Corrected Loan solely because the related Mortgagor had not
made three consecutive monthly debt service payments (but had made the most
recent monthly debt service payment prior to the termination of the Special
Servicer) and subsequently becomes a Corrected Loan as a result of making such
three consecutive payments. The successor Special Servicer will not be entitled
to any portion of those Workout Fees.
In addition, with respect to each Specially Serviced Loan and REO
Mortgage Loan (or Qualified Substitute Mortgage Loan substituted in lieu
thereof) and each REO Non-Trust Loan, subject to Section 3.11(e), the Special
Servicer shall be entitled to the Liquidation Fee payable out of, and calculated
by application of the Liquidation Fee Rate to, all amounts (whether in the form
of payments of Liquidation Proceeds or REO Revenues or a full or discounted
payoff by the Mortgagor) received in respect of such Specially Serviced Loan
(including any Specially Serviced Mortgage Loan repurchased by the applicable
Mortgage Loan Seller outside of the required cure period (as that cure period
may be extended) as provided in the applicable Mortgage Loan Purchase Agreement)
(or, in the case of an REO Loan, in respect of the related REO Property) and
allocable as a full or partial recovery of principal, interest and expenses in
accordance with Section 3.02(b) or the definition of "REO Mortgage Loan" or the
definition of "REO Non-Trust Loan", as applicable; provided that no Liquidation
Fee shall be payable with respect to any amounts received in connection with the
receipt of, or out of, (i) a
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Substitution Shortfall Amount or (ii) Liquidation Proceeds resulting from the
purchase of any Mortgage Loan or REO Property by a Mortgage Loan Seller pursuant
to the applicable Mortgage Loan Purchase Agreement (if purchased within the
required cure period (as that cure period may be extended) set forth in such
Mortgage Loan Purchase Agreement), the purchase of any Mortgage Loan or REO
Property by the Special Servicer or the Majority Controlling Class
Certificateholder pursuant to Section 3.18, the purchase of any Mortgage Loan by
a related mezzanine lender pursuant to any applicable intercreditor, co-lender
or similar agreement (if purchased within 90 days of the date that such purchase
right is first exercisable), the purchase of the ShopKo Portfolio Mortgage Loan
by a ShopKo Portfolio Non-Trust Noteholder pursuant to the related Co-Lender
Agreement (if purchased within 90 days after that purchase option is first
exercisable), the purchase of the Wimbledon Place Apartments Mortgage Loan by
the Wimbledon Place Apartments Non-Trust Loan Noteholder pursuant to the related
Co-Lender Agreement, or the purchase of any Mortgage Loan or REO Property by the
Special Servicer or the Majority Controlling Class Certificateholder pursuant to
Section 9.01, or the acquisition of any Mortgage Loan or REO Property by the
Certificateholders (other than the Class R Certificateholders) in exchange for
their Certificates pursuant to Section 9.01; provided, further, that no
Liquidation Fee shall be payable (i) in connection with a Periodic Payment
received in connection with such Mortgage Loan or (ii) to the extent a Workout
Fee is payable concerning the Liquidation Proceeds.
Notwithstanding the foregoing, any Special Servicing Fee, Workout Fee
and/or Liquidation Fee payable in accordance with the three preceding paragraphs
with respect to a Loan Combination (including, without limitation, any successor
REO Loans comprising same) shall be paid from the collections received on such
Loan Combination on deposit in the related Loan Combination Custodial Account
that may be applied to pay such fees in accordance with the related Co-Lender
Agreement, pursuant to Section 3.05(e), or, if collections received thereon are
insufficient, then any such fees in respect of the related Combination Mortgage
Loan (but not the related Non-Trust Loan(s)) shall be payable out of the
Collection Account, pursuant to Section 3.05(a).
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and the Liquidation 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 Sections 6.02, 6.04 and 6.09.
(d) Subject to Section 3.11(e), additional servicing compensation in
the form of: (i) all late payment charges, Penalty Interest and assumption
application fees received on or with respect to Specially Serviced Loans
actually collected that, with respect to late payment charges, Penalty Interest
and assumption application fees, accrued during the time that the subject
Serviced Loan was a Specially Serviced Loan, (ii) fifty percent (50%) of any
assumption fee actually paid by a Mortgagor with respect to any Serviced Loan
that is not a Specially Serviced Loan, and one-hundred percent (100%) of any
assumption fee actually paid by a Mortgagor with respect to any Specially
Serviced Loan, and (iii) modification fees collected on all Serviced Loans
(other than modifications made by the Master Servicer pursuant to Section
3.20(h)), in each case to the extent actually paid by the related Mortgagor,
shall be retained by the Special Servicer or promptly paid to the Special
Servicer by the Master Servicer and shall not be required to be deposited in the
Collection Account or any Loan Combination Custodial Account, as the case may
be; provided that the Special Servicer's right to receive late payment charges
and Penalty Interest pursuant to clause (i) above shall be limited to the
portion of such items that have not been applied to pay interest on Advances and
property inspection costs in respect of the related Serviced Loan as provided in
Sections 3.03(d), 3.12(a) and 4.03(d) or to reimburse the Trust Fund for
previously incurred Additional Trust Fund Expenses pursuant to this Section
3.11(d). To the extent the Special Servicer receives late payment charges or
Penalty Interest on a Serviced Loan
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for which interest on Advances or inspection costs pursuant to Section 3.12(a)
are outstanding or any Additional Trust Fund Expenses related to such Serviced
Loan have been incurred since the Closing Date and not previously reimbursed to
the Trust Fund, the Special Servicer shall transfer to the Master Servicer for
deposit in the Collection Account, within one (1) Business Day following the
collection of such late payment charges or Penalty Interest, an amount equal to
the lesser of (i) the amount of late payment charges or Penalty Interest
received on such Serviced Loan or (ii) the sum of (A) the amount of interest on
Advances related to such Serviced Loan then due and payable hereunder in
accordance with Section 3.03(d) and/or (except in the case of a Non-Trust Loan)
Section 4.03(d), (B) the amount of any unpaid inspection costs pursuant to
Section 3.12(a) related to such Serviced Loan and (C) without duplication, the
amount of Additional Trust Fund Expenses (including, without limitation,
interest on Advances and inspection costs pursuant to Section 3.12(a)) related
to such Serviced Loan incurred since the Closing Date and not previously
reimbursed to the Trust Fund. To the extent that the Special Servicer is not
entitled to late payment charges or Penalty Interest pursuant to the immediately
preceding sentence, the Special Servicer shall promptly transfer such late
payment charges and Penalty Interest to the Master Servicer who shall deposit
such late payment charges and Penalty Interest in the Collection Account. The
Special Servicer shall also be entitled to additional servicing compensation in
the form of interest or other income earned on deposits in the REO Accounts, if
established, in accordance with Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to each REO Account for each
Collection Period). The Special Servicer shall be required to pay out of its own
funds all allocable overhead and all general and administrative expenses
incurred by it in connection with its servicing activities hereunder, and the
Special Servicer shall not be entitled to reimbursement therefor, except as
expressly provided in Section 3.05(a), if and to the extent such expenses are
not payable directly out of the Collection Account, any Loan Combination
Custodial Account or the REO Accounts, as the case may be.
(e) Notwithstanding the foregoing provisions of this Section 3.11, the
compensation provided to be paid to the Master Servicer and the Special Servicer
in respect of the servicing and administration of a Non-Trust Loan and any
successor REO Non-Trust Loan with respect thereto pursuant to the terms hereof
shall be paid only to the extent permitted by, and in all cases subject to, the
related Co-Lender Agreement.
SECTION 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after a
related Mortgage Loan becomes a Specially Serviced Mortgage Loan; provided that
such expense shall be reimbursable first out of Penalty Interest and late
payment charges received with respect to the related Mortgage Loan in the
Collection Period during which such inspection related expenses were incurred,
then as an Additional Trust Fund Expense (except to the extent, in the case of a
Non-Trust Loan, that such expense is allocable to, and can be paid out of
collections on, such Non-Trust Loan, in which case it shall be reimbursable from
amounts otherwise payable to the related Non-Trust Loan Noteholder that are on
deposit in the related Loan Combination Custodial Account). Each of the Master
Servicer for each Mortgage Loan other than a Specially Serviced Mortgage Loan or
REO Mortgage Loan and the Special Servicer for each Specially Serviced Mortgage
Loan and REO Mortgage Loan shall (and in the case of the Master Servicer, at its
expense) perform or cause to be performed an inspection of all the Mortgaged
Properties at least once per calendar year (or, in the case of each Mortgaged
Property securing a Mortgage Loan (other than a Specially Serviced Mortgage
Loan) with a then-current principal balance (or allocated loan amount) of
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less than $2,000,000 at the time of such inspection, every other calendar year)
beginning in 2007; provided, however, the Master Servicer shall not be required
to inspect any Mortgaged Property that has been inspected by the Special
Servicer during the immediately preceding six (6) months. The Special Servicer
and the Master Servicer shall each prepare (and, in the case of the Special
Servicer, shall deliver to the Master Servicer) a written report of each such
inspection performed by it that sets forth in detail the condition of the
Mortgaged Property and that specifies the existence of: (i) any sale, transfer
or abandonment of the Mortgaged Property of which it is aware, (ii) any change
in the condition or value of the Mortgaged Property that it, in its reasonable
judgment, considers material, or (iii) any visible waste committed on the
Mortgaged Property. The Master Servicer shall deliver such reports to the
Trustee within 45 days of the related inspection and, further, shall, make
copies of all such inspection reports available for review pursuant to Section
3.15. Upon written request and at the expense of the requesting party, the
Trustee shall deliver copies of any such inspection reports to
Certificateholders and Certificate Owners. The Special Servicer shall have the
right to inspect or cause to be inspected (at its own expense) every calendar
year any Mortgaged Property related to a loan that is not a Specially Serviced
Mortgage Loan; provided that the Special Servicer obtains the approval of the
Master Servicer prior to such inspection, and provides a copy of such inspection
to the Master Servicer; provided, further, that the Master Servicer and the
Special Servicer shall not both inspect a Mortgaged Property that is not
securing a Specially Serviced Mortgage Loan in the same calendar year. If the
Special Servicer performs such inspection, such inspection shall satisfy the
Master Servicer's inspection obligations pursuant to this paragraph (a).
With respect to site inspection information, the Master Servicer shall
make such inquiry of any Mortgagor under any related Mortgage Loan as the
Special Servicer may reasonably request.
(b) Not later than 2:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer the following reports with respect to the Specially
Serviced Mortgage Loans and any REO Properties providing the required
information as of the end of the preceding calendar month (in the case of items
(i), (ii) and (iii)) or the end of the related Collection Period (in the case of
items (iv), (v), (vi), (vii) and (viii)): (i) a CMSA Property File; (ii) a CMSA
Comparative Financial Status Report; (iii) a CMSA Financial File; (iv) a CMSA
Historical Liquidation Report; (v) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report; (vi) a CMSA REO Status Report; (vii) a CMSA Loan
Level Reserve/LOC Report; and (viii) a CMSA Delinquent Loan Status Report.
(c) The Master Servicer shall deliver to the Trustee, no later than
12:00 p.m. (New York City time) on the second Business Day prior to each
Distribution Date beginning in July 2006, the CMSA Loan Periodic Update File
with respect to the subject Distribution Date. No later than 1:00 p.m. (New York
City time) on the third Business Day after each Determination Date beginning in
August 2006, the Master Servicer shall deliver or cause to be delivered to the
Trustee (in electronic format acceptable to the Master Servicer and the
Trustee): (A) the most recent CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report and CMSA REO Status
Report received from the Special Servicer pursuant to Section 3.12(b); (B) a
CMSA Property File, a CMSA Comparative Financial Status Report and a CMSA
Financial File, each with the required information as of the end of the
preceding calendar month (in each case combining the reports prepared by the
Special Servicer and the Master Servicer); (C) a CMSA Loan Level Reserve/LOC
Report and a CMSA Delinquent Loan Status Report, each with the required
information as of such Determination Date (in each case combining the reports
prepared by the Special Servicer and the Master
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Servicer); and (D) a CMSA Servicer Watchlist and a CMSA Advance Recovery Report
(in each case, with the required information as of such Determination Date).
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and this Section 3.12(d), and the Master
Servicer shall deliver to the Trustee the reports set forth in this Section 3.12
(in an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b) and
this Section 3.12(d), and the Master Servicer and the Trustee with respect to
the reports set forth in Section 3.12(c)). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d). The Trustee may,
absent manifest error, conclusively rely on the CMSA Loan Periodic Update File
to be provided by the Master Servicer pursuant to Section 4.02(b). In the case
of information or reports to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12, to the extent that such information is based on
reports to be provided by the Special Servicer pursuant to Section 3.12(b) and
this Section 3.12(d) and, to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(b) and this Section
3.12(d), the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer, and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by this Section 3.12 to the
extent caused by the Special Servicer's failure to timely provide any report
required under Section 3.12(b) and this Section 3.12(d) of this Agreement.
The Special Servicer, in the case of each Specially Serviced Mortgage
Loan and each REO Property, and the Master Servicer, in the case of all other
Mortgage Loans, shall each consistent with the Servicing Standard, endeavor to
obtain quarterly and annual operating statements and rent rolls with respect to
the related Mortgage Loans and REO Properties, which efforts shall include in
the case of Mortgage Loans, a letter sent to the related Mortgagor each quarter
requesting such quarterly and annual operating statements and rent rolls until
they are received, to the extent such action is consistent with applicable law
and the related Mortgage Loan documents.
The Special Servicer shall promptly following receipt, deliver copies
of the operating statements and rent rolls received or obtained by it to the
Master Servicer, and the Master Servicer shall deliver copies of the operating
statements and rent rolls received or obtained by it to the Rating Agencies, the
Trustee, the Special Servicer and the Controlling Class Representative, in each
case (other than the Rating Agencies and the Controlling Class Representative,
which shall be sent copies within 30 days following the Master Servicer's
receipt) upon request.
Within 35 days after receipt by the Master Servicer or the Special
Servicer of any annual operating statements with respect to any Mortgaged
Property or REO Property, as applicable, each of the Master Servicer and the
Special Servicer shall prepare or update and, with respect to any CMSA NOI
Adjustment Worksheet prepared or updated by the Special Servicer, forward to the
Master Servicer, a CMSA NOI Adjustment Worksheet for such Mortgaged Property or
REO Property (with the annual operating statements attached thereto as an
exhibit).
The Special Servicer with respect to each Specially Serviced Mortgage
Loan and REO Mortgage Loan, and the Master Servicer with respect to each other
Mortgage Loan, shall each prepare and maintain and forward to each other one
CMSA Operating Statement Analysis for each Mortgaged Property and REO Property,
as applicable. The CMSA Operating Statement Analysis for each Mortgaged Property
and REO Property is to be updated by each of the Master Servicer and the Special
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Servicer, as applicable, within 30 days after its respective receipt of updated
operating statements for such Mortgaged Property or REO Property, as the case
may be, but in no event less frequently than annually by June 30th of each year.
The Master Servicer and the Special Servicer shall each use the "Normalized"
column from the CMSA NOI Adjustment Worksheet for any Mortgaged Property or REO
Property, as the case may be, to update the corresponding CMSA Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO Property, as the case may be, to prepare the
CMSA NOI Adjustment Worksheet for such property. Copies of CMSA Operating
Statement Analyses and CMSA NOI Adjustment Worksheets maintained thereby are to
be made available by the Master Servicer and the Special Servicer to each other,
the Trustee, the Controlling Class Representative and, subject to Section 3.15,
any Certificateholders, Certificate Owner or prospective Certificateholder or
Certificate Owners (or a licensed or registered investment adviser representing
such Person), in each case upon request.
SECTION 3.13 Annual Statement as to Compliance.
Each of the Trustee, the Master Servicer and the Special Servicer
shall itself deliver, and shall cause (or, in the case of a Designated
Sub-Servicer, shall use commercially reasonable efforts to cause) each
Additional Item 1123 Servicer retained or engaged by it to deliver, on or before
April 30 of each year, beginning in 2007 (provided that if the Trustee or a
Non-Trust Loan Noteholder requires the following statement in connection with
any filing with the Commission, each of the Trustee, the Master Servicer and the
Special Servicer shall deliver, and shall cause (or, in the case of a Designated
Sub-Servicer, shall use commercially reasonable efforts to cause) each
Additional Item 1123 Servicer retained or engaged by it to deliver, on or before
March 15 of the subject year), to the Trustee, the Depositor, the Controlling
Class Representative, each Non-Trust Loan Noteholder, each Underwriter and each
Rating Agency and, in the case of the Special Servicer or an Additional Item
1123 Servicer, to the Master Servicer, a statement of compliance (the "Annual
Statement of Compliance") from the Trustee, the Master Servicer, the Special
Servicer or such Additional Item 1123 Servicer, as the case may be, signed by an
authorized officer thereof, to the effect that: (i) a review of the activities
of the Trustee, the Master Servicer, the Special Servicer or such Additional
Item 1123 Servicer, as the case may be, during the preceding calendar year (or,
if applicable, the portion of such year during which the Certificates were
outstanding) and of its performance under this Agreement (or, in the case of an
Additional Item 1123 Servicer, under the applicable Sub-Servicing Agreement or
primary servicing agreement) has been made under such officer's supervision, and
(ii) to the best of such officer's knowledge, based on such review, the Trustee,
the Master Servicer, the Special Servicer or such Additional Item 1123 Servicer,
as the case may be, has fulfilled all of its obligations under this Agreement
(or, in the case of an Additional Item 1123 Servicer, under the applicable
Sub-Servicing Agreement or primary servicing agreement) in all material respects
throughout such year (or, if applicable, the portion of such year during which
the Certificates were outstanding) 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. In addition, if any party
acting as the Master Servicer, Special Servicer or Trustee is terminated or
resigns (in such capacity) pursuant to the terms of this Agreement, such party
shall provide, and shall cause (or, in the case of a Designated Sub-Servicer,
shall use commercially reasonable efforts to cause) any Additional Item 1123
Servicer engaged by it to provide, an Annual Statement of Compliance pursuant to
this Section 3.13 with respect to the period of time that such party or such
Additional Item 1123 Servicer was acting in the relevant capacity.
If the Trustee or the Depositor does not receive the Annual Statement
of Compliance with respect to any party contemplated to deliver such report
pursuant to the preceding paragraph, by March
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15th of any year during which a Form 10-K Annual Report is required to be filed
with the Commission with respect to the Trust, then the Trustee shall, and the
Depositor may, forward a Servicer Notice to such party (or, in the case of an
Additional Item 1123 Servicer, to the party hereto that retained or engaged such
Additional Item 1123 Servicer), with a copy of such Servicer Notice to the
Depositor (if the Trustee is sending the Servicer Notice) or the Trustee (if the
Depositor is sending the Servicer Notice), as applicable, within two (2)
Business Days of such failure. Any party hereto that retains or engages a
Servicing Representative that is, at the time of appointment (except in the case
of a Designated Sub-Servicer), or subsequently becomes an Additional Item 1123
Servicer shall so notify the Trustee (unless such party is the Trustee) and the
Depositor in writing promptly following such party's becoming aware that such
Servicing Representative is or has become an Additional Item 1123 Servicer; and,
further, if such Servicing Representative does not deliver or cause the delivery
of an Annual Statement of Compliance with respect to itself by March 15th of any
year during which a Form 10-K Annual Report is required to be filed with the
Commission with respect to the Trust, the party hereto that retained or engaged
such Servicing Representative shall promptly so notify the Trustee (unless such
party is the Trustee) and the Depositor in writing no later than the second
Business Day following such March 15th, together with an explanation of such
failure.
SECTION 3.14 Reports on Assessment of Compliance with Servicing
Criteria; Registered Public Accounting Firm Attestation
Reports.
Each Servicing Function Participant shall itself deliver, and each
party hereto shall cause (or, in the case of a Designated Sub-Servicer, shall
use commercially reasonable efforts to cause) any Sub-Servicing Function
Participant retained or engaged by it to deliver, on or before April 30 of each
year, beginning in 2007 (provided that if the Trustee or a Non-Trust Loan
Noteholder requires the following reports in connection with any filing with the
Commission, each Servicing Function Participant shall deliver, and each party
hereto shall cause (or, in the case of a Designated Sub-Servicer, shall use
commercially reasonable efforts to cause) any Sub-Servicing Function Participant
retained or engaged by it to deliver, on or before March 15 of the subject
year), at its own expense, to the Trustee, the Depositor, the Controlling Class
Representative, each Non-Trust Loan Noteholder, each Underwriter and each Rating
Agency and, in the case of a Servicing Function Participant (other than the
Master Servicer) or a Sub-Servicing Function Participant, to the Master
Servicer, the following reports: (i) as required under Rule 13a-18 or Rule
15d-18 of the Exchange Act and Item 1122 of Regulation AB, a report on an
assessment of compliance by it with the Servicing Criteria (an "Annual
Assessment Report"), signed by an authorized officer of such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be,
which report shall contain (A) a statement by such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be, of
its responsibility for assessing compliance with the Relevant Servicing Criteria
applicable to it, (B) a statement that such Servicing Function Participant or
such Sub-Servicing Function Participant, as the case may be, used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
Servicing Function Participant's or such Sub-Servicing Function Participant's,
as the case may be, assessment of compliance with the Relevant Servicing
Criteria as of and for the period ending December 31st of the preceding calendar
year, which discussion must include any material instance of noncompliance with
the Relevant Servicing Criteria identified by such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be, and
(D) a statement that a registered public accounting firm has issued an
attestation report on such Servicing Function Participant's or such
Sub-Servicing Function Participant's, as the case may be, assessment of
compliance with the Relevant Servicing Criteria as of and for such period ending
December 31st of the preceding calendar year; and (ii) as to each report
delivered by a Servicing Function Participant or a Sub-Servicing Function
Participant pursuant to the
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immediately preceding clause (i), a report from a registered public accounting
firm (made in accordance with the standards for attestation engagements issued
or adopted by the PCAOB) (an "Annual Attestation Report") that attests to, and
reports on, the assessment made by the asserting party in such report delivered
pursuant to the immediately preceding clause (i), together with (if required to
be filed with the Commission) a consent from such registered public accounting
firm authorizing the filing of the subject Annual Attestation Report with the
Commission. Promptly after receipt of each such report delivered pursuant to the
preceding sentence, the Depositor may review such report and, if applicable,
shall be entitled to consult with the appropriate party hereto as to the nature
of any material instance of noncompliance with the applicable Servicing Criteria
by such party or any Sub-Servicing Function Participant retained or engaged by
it. If any Servicing Function Participant is terminated or resigns pursuant to
the terms of this Agreement, such party shall provide, and each such party
hereto shall cause (or, in the case of a Designated Sub-Servicer, shall use
commercially reasonable efforts to cause) any Sub-Servicing Function Participant
engaged by it to provide, an Annual Assessment Report pursuant to this Section
3.14, together with (i) an Annual Attestation Report pursuant to this section
with respect to the period of time that the Servicing Function Participant was
subject to this Agreement or the period of time that the Sub-Servicing Function
Participant was subject to such other servicing agreement and (ii) any
corresponding accountant's consent required to be filed with the Commission.
If the Trustee or the Depositor does not receive the Annual Assessment
Report and/or the Annual Attestation Report with respect to any Servicing
Function Participant, or with respect to any Sub-Servicing Function Participant
retained or engaged by a party hereto, by March 15th of any year during which a
Form 10-K Annual Report is required to be filed with the Commission with respect
to the Trust, then the Trustee shall, and the Depositor may, forward a Servicer
Notice to such Servicing Function Participant or the party hereto that retained
or engaged such Sub-Servicing Function Participant, as the case may be, with a
copy of such Servicer Notice to the Depositor (if the Trustee is sending the
Servicer Notice) or the Trustee (if the Depositor is sending the Servicer
Notice), as applicable, within two (2) Business Days of such failure. For the
purposes of this Section 3.14, as well as Section 3.13 and Section 7.01(iv)(B)
of this Agreement, a "Servicer Notice" shall constitute either any writing
forwarded to such party or, solely in the case of the Master Servicer,
notwithstanding the provisions of Section 11.05, e-mail notice which shall be
forwarded to all of the following e-mail addresses: xxxxxxxxxx@xxxxxxxxx.xxx and
xxxxxxxxxxxx@xxxxxxxxx.xxx, or such other e-mail addresses as are provided in
writing by the Master Servicer to the Trustee and the Depositor; provided that
any party to this Agreement (or someone acting on their behalf) shall only be
required to forward any such notice to be delivered to the Master Servicer to no
more than three (3) e-mail addresses in the aggregate in order to fulfill its
notification requirement as set forth in the preceding sentence and/or under the
provisions of Section 7.01(iv)(B); and provided, further, that a copy of any
Servicer Notice to the Special Servicer shall be forwarded by the means provided
in Section 11.05. Any party hereto that retains or engages a Servicing
Representative that is, at the time of appointment (except in the case of a
Designated Sub-Servicer), or subsequently becomes a Sub-Servicing Function
Participant shall so notify the Trustee (unless such party is the Trustee) and
the Depositor in writing promptly following such party's becoming aware that
such Servicing Representative is or has become a Sub-Servicing Function
Participant; and, provided, further, that if such Servicing Representative does
not deliver or cause the delivery of an Annual Assessment Report, an Annual
Attestation Report and/or, if required to be filed with the Commission, an
accountant's consent with respect to itself by March 15th of any year during
which a Form 10-K Annual Report is required to be filed with the Commission with
respect to the Trust, the party hereto that retained or engaged such Servicing
Representative shall promptly so notify the Trustee (unless such party is the
Trustee) and the Depositor in writing no later than the second Business Day
following such March 15th, together with an explanation of such failure.
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The Master Servicer, the Special Servicer and the Trustee, in each
case, to the extent applicable, will reasonably cooperate with the Depositor in
conforming any reports delivered pursuant to this Section 3.14 to requirements
imposed by the Commission on the Depositor in connection with the Depositor's
reporting requirements in respect of the Trust pursuant to the Exchange Act,
provided that the Master Servicer, the Special Servicer and the Trustee shall
each be entitled to charge the Depositor for any reasonable additional costs and
expenses incurred by it in affording the Depositor such cooperation.
SECTION 3.15 Access to Certain Information.
(a) Upon ten (10) days' prior written notice, the Master Servicer
(with respect to the items in clauses (i), (ii) (other than Distribution Date
Statements, the Prospectus and the Prospectus Supplement), (iii) (in the case of
Annual Statements of Compliance delivered by the Master Servicer or any
Additional Item 1123 Servicers retained or engaged thereby), (v), (vi), (viii),
(ix) (in the case of Officer's Certificates delivered by the Master Servicer),
(x) and (xi) below), the Special Servicer (with respect to the items in clauses
(iii) (in the case of Annual Statements of Compliance delivered by the Special
Servicer or any Additional Item 1123 Servicers retained or engaged thereby),
(vii), (viii) (with respect to Specially Serviced Mortgage Loans), (ix) (in the
case of Officer's Certificates delivered by the Special Servicer) and (x) below)
and the Trustee (with respect to the items in clauses (i), (ii), (iii), (iv) and
(ix) below and to the extent any other items are in its possession) shall make
available at their respective offices primarily responsible for administration
of the Mortgage Loans (or, in the case of the Trustee, at its Corporate Trust
Office), during normal business hours, or send to the requesting party, such
party having been certified to the Trustee, the Master Servicer or the Special
Servicer, as applicable, in accordance with clause (i) or (ii) of the following
paragraph, as appropriate, at the expense of such requesting party (unless
otherwise provided in this Agreement), for review by any Certificate Owner or
Certificateholder or any Person identified by a Certificate Owner or
Certificateholder or its designated agent to the Trustee, the Master Servicer or
the Special Servicer, as the case may be, as a prospective transferee of any
Certificate or interest therein (or a licensed or registered investment adviser
representing such Person), the Trustee, the Rating Agencies, the Underwriters
and anyone specified thereby and the Depositor originals or copies of the
following items: (i) this Agreement and any amendments thereto, (ii) the
Prospectus and Prospectus Supplement, all Distribution Date Statements delivered
or otherwise made available to holders of the relevant Class of Certificates
since the Closing Date and all reports, statements and analyses delivered or
otherwise made available by the Master Servicer since the Closing Date pursuant
to Section 3.12(c), (iii) all Annual Statements of Compliance delivered by
and/or to the Trustee since the Closing Date pursuant to or as contemplated by
Section 3.13, (iv) all Annual Assessment Reports and Annual Attestation Reports
delivered with respect to and/or to the Trustee since the Closing Date pursuant
to or as contemplated by Section 3.14, (v) the most recent property inspection
report prepared by or on behalf of or received by the Master Servicer in respect
of each Mortgaged Property and any Environmental Assessments prepared pursuant
to Section 3.09, (vi) the most recent Mortgaged Property annual operating
statements and rent roll, if any, collected by or on behalf of or received by
the Master Servicer, (vii) any and all modifications, waivers and amendments of
the terms of a Mortgage Loan entered into by the Special Servicer and the Asset
Status Report prepared pursuant to Section 3.21(d), (viii) the Servicing File
relating to each Mortgage Loan, (ix) any and all Officers' Certificates and
other evidence delivered by the Master Servicer or the Special Servicer, as the
case may be, to support its determination that any Advance was, or if made,
would be, a Nonrecoverable Advance pursuant to Section 3.03(e) or 4.03(c),
including appraisals affixed thereto and any Required Appraisal prepared
pursuant to Section 3.09(a), and (x) all CMSA Operating Statement Analyses and
CMSA NOI Adjustment Worksheets maintained by the Master Servicer or
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Special Servicer. Copies of any and all of the foregoing items will be available
from the Master Servicer, the Special Servicer or the Trustee, as the case may
be, upon request, and shall be provided to any of the Rating Agencies at no cost
pursuant to their reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative, in connection with providing
access to or copies of any items in accordance with this Agreement, the Trustee,
the Master Servicer or the Special Servicer, as applicable, shall require: (i)
in the case of Certificate Owners and the Controlling Class Representative, a
confirmation executed by the requesting Person substantially in the form of
Exhibit L-1 hereto (or such other form as may be reasonably acceptable to the
Trustee, the Master Servicer or the Special Servicer, as applicable) generally
to the effect that such Person is a beneficial holder of Book-Entry
Certificates, or a representative of a beneficial holder of Book-Entry
Certificates, and, subject to the last sentence of this paragraph, will keep
such information confidential (except that such Certificate Owner and the
Controlling Class Representative may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein (or a licensed or registered investment adviser representing
such other Person), provided that such other Person (or a licensed or registered
investment adviser representing such other Person) confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (ii) in the case of a prospective transferee of a
Certificate or an interest therein (or a licensed or registered investment
adviser representing such Person), confirmation executed by the requesting
Person substantially in the form of Exhibit L-2 hereto (or such other form as
may be reasonably acceptable to the Trustee, the Master Servicer or the Special
Servicer, as applicable) generally to the effect that such Person is a
prospective transferee of a Certificate or an interest therein (or a licensed or
registered investment adviser representing such Person), is requesting the
information for use in evaluating a possible investment in Certificates and,
subject to the last sentence of this paragraph, will otherwise keep such
information confidential. The Holders of the Certificates, by their acceptance
thereof, and the Controlling Class Representative, by its acceptance of its
appointment, will be deemed to have agreed, subject to the last sentence of this
paragraph, to keep such information confidential (except that any Holder may
provide such information obtained by it to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein (or a licensed
or registered investment adviser representing such other Person), provided that
such other Person (or a licensed or registered investment adviser representing
such other Person) confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential) and agrees
not to use such information in any manner that would violate federal, state or
local securities laws. Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner (or any
licensed or registered investment adviser representing such Person) shall be
obligated to keep confidential any information received from the Trustee, the
Master Servicer or the Special Servicer, as applicable, pursuant to this Section
3.15 that has previously been made available via the Trustee's, the Master
Servicer's or the Special Servicer's Internet Website without restriction as to
access, as applicable, or has previously been filed with the Commission, and the
Trustee, the Master Servicer or the Special Servicer, as applicable, shall not
require either of the certifications contemplated by the second preceding
sentence in connection with providing any information pursuant to this Section
3.15 that has previously been made available via the Trustee's, the Master
Servicer's or the Special Servicer's Internet Website without restriction as to
access, as applicable, or has previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other
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banking or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner or, to the extent that the subject
information relates to a Loan Combination, a related Non-Trust Loan Noteholder,
access to any records regarding the Mortgage Loans and the servicing thereof
within its control, except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from a Certificateholder, Certificate Owner,
prospective transferee (or a licensed or registered investment adviser
representing such Person) or, in the case of the ShopKo Portfolio Loan
Combination, a related ShopKo Portfolio Non-Trust Loan Noteholder, of a sum
sufficient to cover the reasonable costs and expenses of providing any such
information or access pursuant to this Section 3.15 to, or at the request of,
such Certificateholder, Certificate Owner, prospective transferee (or a licensed
or registered investment adviser representing such Person) or, in the case of
the ShopKo Portfolio Loan Combination, a related ShopKo Portfolio Non-Trust Loan
Noteholder, as applicable, including, without limitation, copy charges and, in
the case of any such Person requiring on site review in excess of three (3)
Business Days, reasonable fees for employee time and for space.
(b) The Master Servicer may, but is not required to, make available on
or prior to the Distribution Date in each month to any Privileged Person (or,
following receipt of written direction of the Depositor, any interested party)
(i) the Distribution Date Statement via its Internet Website, (ii) as a
convenience for Privileged Persons (or, following receipt of written direction
of the Depositor, any interested parties) (and not in furtherance of the
distribution thereof under the securities laws), this Agreement, the Prospectus
and the Prospectus Supplement on its Internet Website and (iii) any other items
at the request of the Depositor on its Internet Website.
The Master Servicer and the Special Servicer may each, but neither is
required to, make available each month via its Internet Website (i) to any
Privileged Person (or, following receipt of written direction of the Depositor,
any interested party), the Unrestricted Servicer Reports, the CMSA Loan Setup
File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person,
with the use of a password provided by the Master Servicer or the Special
Servicer, as the case may be, the Restricted Servicer Reports, the CMSA
Financial File and the CMSA Property File. Any Restricted Servicer Report or
Unrestricted Servicer Report that is not available on the Master Servicer's
Internet Website as described in the immediately preceding sentence by 5:00 p.m.
(New York City time) on the related Distribution Date shall be provided (in
electronic format, or if electronic mail is unavailable, by facsimile) by the
Master Servicer, upon request, to any Person otherwise entitled to access such
report on the Master Servicer's Internet Website.
In connection with providing access to the Master Servicer's or the
Special Servicer's Internet Website, the Master Servicer may require
registration and the acceptance of a disclaimer.
If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to the
Trustee, and such application states that the Applicants' desire to communicate
with other Holders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of
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the communication which such Applicants propose to transmit, then the Trustee
shall, within five (5) Business Days after the receipt of such application,
send, at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required
to confirm, represent or warrant the accuracy or completeness of any other
Person's information or report included in any communication from the Master
Servicer or the Special Servicer under this Agreement. Neither the Master
Servicer nor the Trustee shall be liable for the dissemination of information in
accordance with this Section 3.15. The Trustee makes no representations or
warranties as to the accuracy or completeness of any report, document or other
information made available on the Trustee's Website and assumes no
responsibility therefor. In addition, the Trustee, the Master Servicer and the
Special Servicer may disclaim responsibility for any information distributed by
the Trustee, the Master Servicer or the Special Servicer, respectively, for
which it is not the original source.
SECTION 3.16 Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders and, in the case of a Loan Combination, the related
Non-Trust Loan Noteholder(s), as their interests may appear. The Special
Servicer, on behalf of the Trust Fund, shall sell any REO Property as soon as
practicable in accordance with the Servicing Standard, but prior to the end of
the third year following the calendar year in which REMIC I acquires ownership
of such REO Property for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) applies for, more than 60 days prior to the end of
such third succeeding year, and is granted an extension of time (an "REO
Extension") by the Internal Revenue Service to sell such REO Property or (ii)
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee, the
Special Servicer and the Master Servicer, to the effect that the holding by
REMIC I of such REO Property subsequent to the end of such third succeeding year
will not result in the imposition of taxes on "prohibited transactions" (as
defined in Section 860F of the Code) of any REMIC Pool or cause any REMIC Pool
to fail to qualify as a REMIC at any time that any Certificates are outstanding.
If the Special Servicer is granted the REO Extension contemplated by clause (i)
of the immediately preceding sentence or obtains the Opinion of Counsel
contemplated by clause (ii) of the immediately preceding sentence, the Special
Servicer shall sell such REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall first be payable from the REO Account to the extent of
available funds and then be a Servicing Advance by the Master Servicer.
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"Pool REO Account"), held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property (other than any Loan Combination REO Property). If such
REO Acquisition occurs with respect to a Loan Combination Mortgaged Property,
then the Special Servicer shall establish an REO Account solely with respect to
such property (a "Loan Combination REO Account"), to be held for the benefit of
the Certificateholders and the related Non-Trust Loan Noteholder(s), as their
interests may appear. The
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Pool REO Account and any Loan Combination REO Account shall each be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
applicable REO Account, upon receipt, all REO Revenues, Insurance Proceeds and
Liquidation Proceeds (net of Liquidation Expenses) received in respect of an REO
Property within two (2) Business Days of receipt. Funds in the REO Accounts may
be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from each REO Account to
pay itself, as additional servicing compensation in accordance with Section
3.11(d), interest and investment income earned in respect of amounts held in
such REO Account as provided in Section 3.06(b) (but only to the extent of the
Net Investment Earnings with respect to such REO Account for any Collection
Period). The Special Servicer shall give written notice to the Trustee and the
Master Servicer of the location of each REO Account, when first established and
of the new location of such REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
such REO Account relating to such REO Property (including any monthly reserve or
escrow amounts necessary to accumulate sufficient funds for taxes, insurance and
anticipated capital expenditures (the "Impound Reserve")). On the second
Business Day following the end of each Collection Period, the Special Servicer
shall withdraw from the Pool REO Account and any Loan Combination REO Account
and deposit into the Collection Account and the applicable Loan Combination
Custodial Account, respectively, or deliver to the Master Servicer or such other
Person as may be directed by the Master Servicer (which shall deposit such
amounts into the Collection Account and the applicable Loan Combination
Custodial Account, respectively), the aggregate of all amounts received in
respect of each REO Property during such Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence.
Notwithstanding the foregoing, in addition to the Impound Reserve, the Special
Servicer may retain in the applicable REO Account such portion of proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of the
related REO Property (including, without limitation, the creation of a
reasonable reserve for repairs, replacements and other related expenses).
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, each REO Account pursuant to Section 3.16(b) or (c). The
Special Servicer shall provide the Master Servicer any information with respect
to each REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17 Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review in compliance with the Servicing Standard that in its good faith and
reasonable judgment:
(i) None of the income from Directly Operating such REO Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions (such tax referred to herein as an "REO
Tax"), and the Special Servicer does not engage in any of the activities
described in the definition of "Directly Operate" that would cause
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such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, then such Mortgaged Property may
be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be subject to
an REO Tax, but that a lease of such property to another party to operate
such property, or the performance of some services by an Independent
Contractor with respect to such property, or another method of operating
such property would not result in income subject to an REO Tax, then the
Special Servicer may (provided that in the good faith and reasonable
judgment of the Special Servicer, such alternative is commercially feasible
and would result in a greater net recovery on a present value basis than
earning income subject to an REO Tax) acquire such Mortgaged Property as
REO Property and so lease or manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that such method of operation is commercially feasible and would result in
a greater net recovery on a present value basis than leasing or other
method of operating such REO Property that would not incur an REO Tax, the
Special Servicer shall deliver to the Tax Administrator, in writing, a
proposed plan (the "Proposed Plan") to manage such property as REO
Property. Such plan shall include potential sources of income, and to the
extent commercially feasible, estimates of the amount of income from each
such source. Within a reasonable period of time after receipt of such plan,
the Tax Administrator shall consult with the Special Servicer and shall
advise the Special Servicer of the Tax Administrator's federal income tax
reporting position with respect to the various sources of income that the
Trust Fund would derive under the Proposed Plan. In addition, the Tax
Administrator shall (to the extent reasonably possible) advise the Special
Servicer of the estimated amount of taxes that the Trust Fund would be
required to pay with respect to each such source of income. After receiving
the information described in the two preceding sentences from the Tax
Administrator, the Special Servicer shall either (A) implement the Proposed
Plan (after acquiring the respective Mortgaged Property as REO Property) or
(B) manage such property in a manner that would not result in the
imposition of an REO Tax on the income derived from such property. All of
the Tax Administrator's expenses (including any fees and expenses of
counsel or other experts reasonably retained by it) incurred pursuant to
this section shall be reimbursed to it from the Trust Fund in accordance
with Section 10.01(e).
The Special Servicer's decision as to how each REO Property shall be
managed shall be based on the Servicing Standard and in any case on the good
faith and reasonable judgment of the Special Servicer as to which means would be
in the best interest of the Certificateholders and, in the case of any Loan
Combination REO Property, the related Non-Trust Loan Noteholder(s) (as a
collective whole) by maximizing (to the extent commercially feasible and
consistent with Section 3.17(b)) the net after-tax REO Revenues received by the
Trust Fund with respect to such property and, to the extent consistent with the
foregoing, in the same manner as would prudent mortgage loan servicers operating
acquired mortgaged property comparable to the respective REO Property. Both the
Special Servicer and the Tax Administrator may, at the expense of the Trust Fund
payable pursuant to Section 3.05(a) and, to the extent such amounts relate to a
Loan Combination and/or a Loan Combination REO Property, at the expense of the
Trust Fund and the related Non-Trust Loan Noteholder(s) payable pursuant to
Section 3.05(e), consult with counsel.
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(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve and protect such REO Property for the benefit of the
Certificateholders and, in the case of any Loan Combination REO Property, the
related Non-Trust Loan Noteholder(s) (as a collective whole) solely for the
purpose of its prompt disposition and sale in a manner that does not and will
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code and will not result in either (i)
the receipt by any REMIC Pool of any "income from non-permitted assets" within
the meaning of Section 860F(a)(2)(B) of the Code or (ii) an Adverse REMIC Event.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are consistent
with the Servicing Standard and, consistent therewith, shall withdraw from the
related REO Account, to the extent of amounts on deposit therein with respect to
any REO Property, funds necessary for the proper management, maintenance and
disposition of such REO Property, including without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage and restore such REO Property.
To the extent that amounts on deposit in the applicable REO Account in
respect of any REO Property are insufficient for the purposes set forth in the
preceding sentence with respect to such REO Property, the Master Servicer,
subject to the second paragraph of Section 3.03(c), shall make Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
by an Officer's Certificate delivered to the Trustee) the Master Servicer
determines, in accordance with the Servicing Standard, that such payment would
be a Nonrecoverable Advance; provided, however, that the Master Servicer may
make any such Servicing Advance without regard to recoverability if it is a
necessary fee or expense incurred in connection with the defense or prosecution
of legal proceedings.
(c) Unless Section 3.17(a)(i) applies, the Special Servicer shall
contract with any Independent Contractor (if required by the REMIC Provisions
for the subject REO Property to remain classified as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code) for the operation and
management of any REO Property; provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of such REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in Section 3.17(b)
above, and remit all
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related revenues collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) 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 hereunder with respect to the operation and
management of any such REO Property; and
(v) 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 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. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell
or purchase, or permit the sale or purchase of, a Mortgage Loan or an REO
Property 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 Sections
2.03 and 9.01 and/or any applicable intercreditor, co-lender or similar
agreement.
(b) Within 60 days after a Mortgage Loan becomes a Defaulted Mortgage
Loan, 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; and provided, further, that, the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgaged Property unless it has an Appraisal that is
less than 12-months old and has no actual knowledge of, or notice of, any event
which in the Special Servicer's judgment would materially affect the validity of
such Appraisal. 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, if applicable. The Special Servicer is permitted
to change, from time to time, 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; provided, however, the Special Servicer
shall update its determination of the fair value at least once every 90 days.
The Special Servicer shall notify the Trustee, the Master Servicer, each Rating
Agency, the Majority Controlling Class Certificateholder and, in the case of any
Combination Mortgage Loan, the related Non-Trust Loan Noteholder(s) 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, 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, 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
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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 shall consider all 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 conclusively rely on the
opinion and reports of Independent third parties in making such determination.
If the ShopKo Portfolio Mortgage Loan becomes a Defaulted Mortgage Loan, and if
any ShopKo Portfolio Non-Trust Loan has been securitized, then the Special
Servicer shall provide the special servicer for the other securitization trust
that includes such ShopKo Portfolio Non-Trust Loan, subject to payment of
reasonable costs, copies of any information used by the Special Servicer to
determine the fair value of the ShopKo Portfolio Mortgage Loan.
(c) If a Mortgage Loan becomes a Defaulted Mortgage Loan, then each of
the Majority Controlling Class Certificateholder and the Special Servicer shall
have an assignable option (a "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund (with respect to any Combination Mortgage
Loan, subject to the related Co-Lender Agreement) at a price (the "Option
Price") equal to (i) the Purchase 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 the related Mortgagor or an Affiliate of the related Mortgagor at any time
after the related Mortgage Loan becomes a Defaulted Mortgage Loan. The
transferor of any Purchase Option shall notify the Trustee 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, and subject to any applicable co-lender, intercreditor or similar
agreement, the Majority Controlling Class Certificateholder shall have the right
to exercise its Purchase Option prior to any exercise of the Purchase Option by
any other holder of a Purchase Option; provided that if the Purchase Option is
not exercised by the Majority Controlling Class Certificateholder or any
assignee thereof within 60 days of a Mortgage Loan becoming a Defaulted Mortgage
Loan, then the Special Servicer shall have the right to exercise its Purchase
Option prior to any exercise by the Majority Controlling Class
Certificateholder, 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, and subject to Section 3.18(d) and any applicable co-lender,
intercreditor or similar agreement, the Majority Controlling Class
Certificateholder shall again have the right to exercise its Purchase Option
prior to any exercise of the Purchase Option by the Special Servicer. If not
exercised earlier, the Purchase Option with respect to any Defaulted Mortgage
Loan will automatically terminate (i) once the subject 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), (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 or (iv)
such Defaulted Mortgage Loan is otherwise removed from the Trust Fund.
(d) Notwithstanding Section 3.18(c), if the ShopKo Portfolio Mortgage
Loan becomes a Defaulted Mortgage Loan, then for 30 days following the 15-day
period during which the
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Special Servicer may exercise the Purchase Option with respect to the ShopKo
Portfolio Mortgage Loan, but prior to the Majority Controlling Class
Certificateholder again being able to exercise that Purchase Option, any ShopKo
Portfolio Non-Trust Loan Noteholder (or its designee) shall be entitled to
exercise the Purchase Option for the ShopKo Portfolio Mortgage Loan, with
priority to be given based upon the timing of the delivery of a Purchase Option
Notice (which may not be delivered until expiration of the 15-day period during
which the Special Servicer may exercise such Purchase Option, notice of which
shall be given by the Special Servicer to the ShopKo Portfolio Non-Trust Loan
Noteholders promptly upon the occurrence of such expiration). Any ShopKo
Portfolio Non-Trust Loan Noteholder (or designee thereof) that delivers a
Purchase Option Notice with respect to the ShopKo Portfolio Mortgage Loan shall
have ten (10) days to complete the purchase following the later of (i) delivery
of that Purchase Option Notice and (ii) the expiration of the ten (10) day
period contemplated by this sentence for each other ShopKo Portfolio Non-Trust
Loan Noteholder (or designee thereof) that delivered an earlier Purchase Option
Notice.
(e) 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 and the
Trustee written notice thereof (the "Purchase Option Notice"), in the form of
Exhibit M, which notice shall identify the Person that, on its own or through an
Affiliate, will acquire the subject 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 11.05. The exercise
of any Purchase Option pursuant to this clause (e) shall be irrevocable.
(f) If the Special Servicer or the Majority Controlling Class
Certificateholder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the subject Mortgage
Loan, the Trustee shall determine as soon as reasonably practicable (and, in any
event, within 30 days) after the Trustee has received the written notice,
whether the Option Price represents fair value for the Defaulted Mortgage Loan;
provided that, if the Special Servicer is then in the process of obtaining a new
Appraisal with respect to the related Mortgaged Property, then the Trustee shall
make its fair value determination with respect to the subject Mortgage Loan as
soon as reasonably practicable (but in any event within 30 days) after the
Trustee's receipt of such new Appraisal. Such fair value determination shall be
made in accordance with the Trustee's good faith reasonable judgment. In
determining the fair value of any Defaulted Mortgage Loan, the Trustee may rely
on the opinion and reports of Independent third parties in making such
determination; provided that the Trustee may rely on the most current Appraisal
obtained for the related Mortgaged Property pursuant to this Agreement (if not
obtained by the party with the conflict), it being herein acknowledged that the
Trustee is authorized to obtain its own Appraisal at the expense of the Trust if
necessary and appropriate under the circumstances. The reasonable costs of all
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Trustee or any such third party pursuant to this subsection shall be
advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances (or if such Advance is deemed to be a Nonrecoverable Advance
such costs shall be reimbursable as Additional Trust Fund Expenses). The other
parties to this Agreement shall cooperate with all reasonable requests for
information.
(g) 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
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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 a
repurchase by the applicable Mortgage Loan Seller pursuant to Section 2.03.
(h) If title to any Mortgaged Property is acquired by the Trust Fund
in respect of any Mortgage Loan, then the Special Servicer shall, subject to
Section 6.11 or Section 6.12, as applicable, use its reasonable best efforts to
sell the subject REO Property as soon as practicable in accordance with Section
3.16(a); and, in connection therewith the Special Servicer shall offer such REO
Property in a commercially reasonable manner. If the Special Servicer on behalf
of the Trustee has not received an REO Extension or an Opinion of Counsel
described in Section 3.16(a) and the Special Servicer is not able to sell such
REO Property within the period specified in Section 3.16(a), or if an REO
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, subject to
Section 6.11 or Section 6.12, as applicable, before the end of such period or
extended period, as the case may be, auction the REO Property to the highest
bidder (which may be the Special Servicer) in accordance with the Servicing
Standard. The Special Servicer shall give the Controlling Class Representative,
the Master Servicer and the Trustee (and, with respect to any Loan Combination,
the related Non-Trust Loan Noteholder(s)) not less than five (5) days' prior
written notice of its intention to sell any REO Property. Where any Interested
Person is among those bidding with respect to an REO Property, the Special
Servicer shall require that all bids be submitted in writing and be accompanied
by a refundable deposit of cash in an amount equal to 5% of the bid amount. No
Interested Person shall be permitted to purchase an REO Property at a price less
than the Purchase Price; provided that, if the Special Servicer intends to bid
on any REO Property, (i) the Special Servicer shall notify the Trustee of such
intent, (ii) the Trustee shall promptly obtain, at the expense of the Trust
Fund, an Appraisal of such REO Property and (iii) the Special Servicer shall not
bid less than the greater of (A) the fair market value set forth in such
Appraisal or (B) the Purchase Price.
(i) Subject to the REMIC Provisions, the Special Servicer shall act on
behalf of the Trust Fund in negotiating and taking any other action necessary or
appropriate in connection with the sale of any REO Property or the exercise of a
Purchase Option, including the collection of all amounts payable in connection
therewith. Notwithstanding anything to the contrary herein, neither the Trustee,
in its individual capacity, nor any of its Affiliates may bid for or purchase
any REO Property or purchase any Defaulted Mortgage Loan. Any sale of a
Defaulted Mortgage Loan (pursuant to a Purchase Option) or an REO Property shall
be without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Special Servicer, the Master Servicer, any Mortgage Loan Seller
or the Trust Fund. Notwithstanding the foregoing, nothing herein shall limit the
liability of the Master Servicer, the Special Servicer or the Trustee to the
Trust Fund and the Certificateholders for failure to perform its duties in
accordance herewith. None of the Special Servicer, the Master Servicer, the
Depositor or the Trustee shall have any liability to the Trust Fund or any
Certificateholder with respect to the price at which a Defaulted Mortgage Loan
is sold if the sale is consummated in accordance with the terms of this
Agreement.
(j) Upon exercise of a Purchase Option, the holder of such Purchase
Option shall be required to pay the purchase price specified in its Purchase
Option Notice to the Special Servicer within 10 Business Days of exercising its
Purchase Option. The proceeds of any sale of a Defaulted Mortgage Loan, after
deduction of the expenses of such sale incurred in connection therewith, shall
be remitted by the Special Servicer to the Master Servicer within one (1)
Business Day of receipt for deposit into the Collection Account. The Special
Servicer shall immediately notify the Trustee upon the holder of the effective
Purchase Option's failure to remit the purchase price specified in its Purchase
Option Notice
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pursuant to this Section 3.18(j). Thereafter, the Special Servicer shall notify
each holder of a Purchase Option of such failure and such holder of a Purchase
Option may then exercise its Purchase Option in accordance with this Section
3.18.
(k) Notwithstanding anything herein to the contrary, the Special
Servicer shall not take or refrain from taking any action pursuant to
instructions from the Controlling Class Representative or a Non-Trust Loan
Noteholder that would cause it to violate applicable law or any term or
provision of this Agreement, including the REMIC Provisions and the Servicing
Standard.
(l) The amount paid for a Defaulted Mortgage Loan or related REO
Property purchased under this Agreement shall be deposited into the Collection
Account, in the case of a Mortgage Loan, or the REO Account, in the case of an
REO Property (except any portion of such amount constituting Gain-on-Sale
Proceeds which shall be deposited in the Gain-on-Sale Reserve Account or, in the
case of any Combination Mortgage Loan, applied in accordance with the related
Co-Lender Agreement). Upon receipt of an Officer's Certificate from the Master
Servicer to the effect that such deposit has been made, the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in the purchaser of such Defaulted Mortgage Loan or related REO Property
ownership of the Defaulted Mortgage Loan or REO Property. The Trustee, upon
receipt of a Request for Release, shall release or cause to be released to the
Master Servicer or Special Servicer the related Mortgage File. In connection
with any such purchase, the Special Servicer shall deliver the related Servicing
File to the purchaser of a Defaulted Mortgage Loan or related REO Property.
SECTION 3.19 Additional Obligations of Master Servicer and Special
Servicer.
(a) The Master Servicer shall deposit in the Collection Account on
each P&I Advance Date, without any right of reimbursement therefor, with respect
to those Mortgage Loans, if any, that were, in each case, subject to a voluntary
Principal Prepayment (other than Principal Prepayments from Insurance Proceeds
or Liquidation Proceeds) during the most recently ended Collection Period
creating a Prepayment Interest Shortfall, an amount equal to the lesser of (i)
the amount of all of the related Prepayment Interest Shortfalls and (ii) the sum
of (A) the Master Servicing Fees (in each case, calculated for this purpose only
at a rate of 0.01% per annum) received by the Master Servicer during such
Collection Period on the Mortgage Pool and (B) all Prepayment Interest Excesses
received by the Master Servicer during such Collection Period on the Mortgage
Pool; provided that if a Prepayment Interest Shortfall occurs as a result of the
Master Servicer's allowing a Mortgagor to deviate from the terms of the related
loan documents regarding principal prepayments (other than (I) subsequent to a
material default under the related loan documents, (II) pursuant to applicable
law or court order or (III) at the request or with the consent of the Special
Servicer or the Controlling Class Representative), then clause (ii)(A) of this
sentence will be replaced with the sum of (X) all Master Servicing Fees payable
to the Master Servicer with respect to the Mortgage Pool for the subject
Collection Period, inclusive of any portion thereof payable to a third-party
primary servicer and inclusive of any Excess Servicing Strip and (Y) any
investment income earned on the related principal prepayment while on deposit in
the Master Servicer's Collection Account; and provided, further, that amounts
set forth in clause (ii)(A) of this sentence shall be deemed applied to cover
the subject Prepayment Interest Shortfalls before amounts set forth in clause
(ii)(B) of this sentence. In addition, the Master Servicer shall also deposit in
the Collection Account on each P&I Advance Date, without any right of
reimbursement therefor, an amount equal to the lesser of (i) the amount of any
Prepayment Interest Shortfalls incurred in respect of the Mortgage Pool during
any particular Collection Period that were not
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covered pursuant to the prior sentence and (ii) the amount of any Prepayment
Interest Excesses received by the Master Servicer during such Collection Period
on the Mortgage Pool that were not otherwise applied pursuant to the prior
sentence.
For the purposes of determining the amounts that the Master Servicer
is required to deposit in the Collection Account on any P&I Advance Date in
respect of any particular Collection Period pursuant to the preceding paragraph
of this Section 3.19(a), no Prepayment Interest Shortfall shall be carried over
from a prior Collection Period. Notwithstanding the foregoing, the Master
Servicer shall not be relieved from making a payment it was obligated to make
under the preceding paragraph of this Section 3.19(a) in respect of a prior
Collection Period, but failed to do so.
(b) The Master Servicer shall, as to each Mortgage Loan that is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 60 days of the Closing Date) notify the related ground
lessor in writing of the transfer of such Mortgage Loan to the Trust Fund
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.
(c) The Master Servicer shall promptly deliver to the Special Servicer
(and in any event within five (5) Business Days following receipt) any written
evidence it receives of an institutional lender's binding commitment to
refinance a Mortgage Loan within 60 days after the due date of such Mortgage
Loan's Balloon Payment.
(d) The Master Servicer shall be responsible for paying the ongoing
surveillance fees of the Rating Agencies with respect to the Trust.
(e) The Special Servicer, with respect to litigation involving
Specially Serviced Loans, and the Master Servicer, with respect to litigation
involving non-Specially Serviced Loans, and where the applicable servicer
contemplates availing itself of indemnification as provided for under this
Agreement, such servicer shall, for the benefit of the Certificateholders,
direct, manage, prosecute, defend and/or settle any and all claims and
litigation relating to (a) the enforcement of the obligations of a Mortgagor
under the related Mortgage Loan documents and (b) any action brought against the
Trust Fund or any party to this Agreement with respect to any Mortgage Loan (the
foregoing rights and obligations, "Litigation Control"). Such Litigation Control
shall be carried out in accordance with the terms of this Agreement, including,
without limitation, the Servicing Standard. Upon becoming aware of or being
named in any such claims or litigation, the Master Servicer shall immediately
notify the Controlling Class Representative of such claims or litigation. In
addition, the Master Servicer shall prepare and submit a monthly status report
regarding any Litigation Control matter to the Controlling Class Representative.
Notwithstanding the foregoing, (a) if any action, suit, litigation or
proceeding names the Trustee in its individual capacity, or if any judgment is
rendered against the Trustee in its individual capacity, then the Trustee, upon
prior written notice to the Master Servicer or the Special Servicer, as
applicable, may retain counsel and appear in any such proceeding on its own
behalf in order to protect and represent its interests (provided that the Master
Servicer or the Special Servicer, as applicable, shall retain the right to
manage and direct any such action, suit, litigation or proceeding); (b) in the
event of any action, suit, litigation or proceeding, other than an action, suit,
litigation or proceeding relating to the enforcement of the obligations of a
Mortgagor, guarantor or other obligor under the related Mortgage Loan documents,
or otherwise relating to one or more Mortgage Loans or Mortgaged Properties,
neither the Master Servicer nor the Special Servicer shall, without the prior
written consent of the Trustee,
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(i) initiate an action, suit, litigation or proceeding in the name of the
Trustee, whether in such capacity or individually, (ii) engage counsel to
represent the Trustee, or (iii) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, the Trustee
to be registered to do business in any state (provided that neither the Master
Servicer nor the Special Servicer shall be responsible for any delay due to the
failure of the Trustee to grant such consent and, subject in the case of clause
(b)(iii) to the Trustee's taking reasonable action to appoint a separate or
co-trustee to address any doing business issue, and without limiting the
Trustee's duties, liabilities and responsibilities under any other section
hereof or under applicable law, the Trustee shall not be liable for delaying or
refusing to grant such consent); and (c) in the event that any court finds that
the Trustee is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement or any Mortgage Loan, the
Trustee shall have the right to retain counsel and appear in any such proceeding
on its own behalf in order to protect and represent its interests, whether as
Trustee or individually (provided that the Master Servicer or the Special
Servicer, as applicable, shall retain the right to manage and direct any such
action, suit, litigation or proceeding).
Notwithstanding the foregoing, each of the Special Servicer and the
Master Servicer, as applicable, shall consult with and keep the Controlling
Class Representative advised of any material development including without
limitation (i) any material decision concerning Litigation Control and the
implementation thereof and (ii) any decision to agree to or propose any terms of
settlement, and shall submit any such development or decision to the Controlling
Class Representative for its approval or consent. Subject to Section 6.12 (if
and as applicable), and to the last paragraph of this Section 3.19(e), the
Special Servicer or the Master Servicer, as applicable, shall not take any
action implementing any such material development or decision described in the
preceding sentence unless and until it has notified in writing the Controlling
Class Representative and the Controlling Class Representative has not objected
in writing within five (5) Business Days of having been notified thereof and
having been provided with all information that the Controlling Class
Representative has reasonably requested with respect thereto promptly following
its receipt of the subject notice (it being understood and agreed that if such
written objection has not been received by the Special Servicer or the Master
Servicer, as applicable, within such five (5) Business Day period, then the
Controlling Class Representative shall be deemed to have approved the taking of
such action); provided that, in the event that the Special Servicer or the
Master Servicer, as applicable, determines that immediate action is necessary to
protect the interests of the Certificateholders (as a collective whole), the
Special Servicer or the Master Servicer, as applicable, may take such action
without waiting for the Controlling Class Representative's response; provided
that the Special Servicer or the Master Servicer, as applicable, has
confirmation that the Controlling Class Representative has received notice of
such action in writing. With respect to the ShopKo Portfolio Mortgage Loan,
references in this paragraph to the Controlling Class Representative shall mean
the ShopKo Portfolio Controlling Party.
Notwithstanding anything contained herein to the contrary with respect
to any Litigation Control otherwise required to be exercised hereunder by the
Master Servicer relating to a Mortgage Loan that has either (i) been satisfied
or paid in full, or (ii) as to which a Final Recovery Determination has been
made, after receiving the required notice from the Master Servicer set forth
above that such Master Servicer became aware of or was named in any such claims
or litigation, the initial Controlling Class Representative may direct in
writing that the such Litigation Control nevertheless be exercised by the
Special Servicer; provided, however, that the Controlling Class Representative
has determined and advised the Master Servicer that its actions with respect to
such obligations are indemnifiable under Section 6.03 hereof, and accordingly,
any loss, liability or expense (including legal fees and expenses
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incurred up until such date of transfer of Litigation Control to the Special
Servicer) arising from the related legal action or claim underlying such
Litigation Control and not otherwise paid to the Master Servicer pursuant to
Section 6.03 of this Agreement shall be payable by the Trust.
Notwithstanding the foregoing, no advice, direction or objection of,
or consent withheld by, the Controlling Class Representative or the ShopKo
Portfolio Controlling Party, as applicable, shall (i) require or cause the
Special Servicer or the Master Servicer, as applicable, to violate the terms of
any Mortgage Loan or any related intercreditor, co-lender or similar agreement,
applicable law or any provision of this Agreement, including the Special
Servicer's and the Master Servicer's obligation to act in accordance with the
Servicing Standard and the Mortgage Loan documents for any Mortgage Loan and to
maintain the REMIC status of REMIC I or REMIC II, or (ii) result in an Adverse
REMIC Event with respect to REMIC I or REMIC II or an Adverse Grantor Trust
Event with respect to Grantor Trust Y or have adverse tax consequences for the
Trust Fund, or (iii) expose any of the Master Servicer, the Special Servicer,
the Depositor, any of the Mortgage Loan Sellers, any Sub-Servicer, the Trust
Fund, the Trustee or any of their respective Affiliates, officers, directors,
shareholders, partners, members, managers, employees or agents to any claim,
suit, or liability for which this Agreement does not provide indemnification to
such party or expose any such party to prosecution for a criminal offense, or
(iv) materially expand the scope of the Special Servicer's, the Master
Servicer's or the Trustee's responsibilities under this Agreement; and neither
the Special Servicer nor the Master Servicer will follow any such advice,
direction or objection if given by the Controlling Class Representative or the
Class REC Representative, as applicable, or initiate any such actions, that
would have the effect described in clauses (i)-(iv) of this sentence.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(j) below and to Sections
3.08(b), Section 6.11 and Section 6.12, and further subject to any applicable
intercreditor, co-lender or similar agreement (including, with respect to a Loan
Combination, the related Co-Lender Agreement), the Master Servicer (to the
extent provided in Section 3.02(a) and Section 3.20(h) below) and the Special
Servicer may, on behalf of the Trustee, agree to any modification, waiver or
amendment of any term of any Serviced Loan (including, subject to Section
3.20(h), the lease reviews and lease consents related thereto) without the
consent of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Serviced Loan
(including, subject to Section 3.20(h), the lease reviews and lease consents
related thereto) shall be in writing and shall be considered and effected in
accordance with the Servicing Standard; provided, however, that neither the
Master Servicer nor the Special Servicer, as applicable, shall make or permit or
consent to, as applicable, any modification, waiver or amendment of any term of
any Serviced Loan not otherwise permitted by this Section 3.20 that would
constitute a "significant modification" of such Serviced Loan within the meaning
of Treasury regulations section 1.860G-2(b).
(c) Except as provided in Section 3.20(d) and the last sentence of
Section 3.02(a), neither the Master Servicer nor the Special Servicer, on behalf
of the Trustee, shall agree or consent to any modification, waiver or amendment
of any term of any Serviced Loan that would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Penalty Interest, late payment charges
and amounts payable as additional servicing compensation) payable
thereunder;
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(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result 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 determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released (other than in connection with a taking of all or part of
the related Mortgaged Property or REO Property for not less than fair
market value by exercise of the power of eminent domain or condemnation or
casualty or hazard losses with respect to such Mortgaged Property or REO
Property); or
(iv) except as provided in Section 3.08, permit the transfer or
transfers of (A) the related Mortgaged Property or any interest therein or
(B) equity interests in the Mortgagor or any equity owner of the Mortgagor
that would result, in the aggregate during the term of the related Mortgage
Loan, in a transfer greater than 49% of the total interest in the subject
Mortgagor and/or any equity owner of the related Mortgagor or a transfer of
voting control in the related Mortgagor or an equity owner of the related
Mortgagor;
(v) except as provided in Section 3.08, consent to the further
encumbrance of the related Mortgaged Property with additional debt; and
(vi) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Serviced Loan
or reduce the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to Section 6.11,
Section 6.12 and the third paragraph of this Section 3.20(d) and any applicable
co-lender, intercreditor or similar agreement, including any related Co-Lender
Agreement, the Special Servicer may (i) reduce the amounts owing under any
Specially Serviced Loan by forgiving principal, accrued interest or any
Prepayment Premium or Yield Maintenance Charge, (ii) reduce the amount of the
Periodic Payment on any Specially Serviced Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Loan, (iv) extend the maturity date of any Specially Serviced Loan, or (v)
accept a Principal Prepayment on any Specially Serviced Loan during any Lockout
Period; provided that (A) the related Mortgagor is in default with respect to
the Specially Serviced Loan or, in the reasonable, good faith judgment of the
Special Servicer, such default is reasonably foreseeable, and (B) in the
reasonable, good faith judgment of the Special Servicer, such modification would
increase the recovery on the Serviced Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate). In the case of every other modification, waiver or consent, the Special
Servicer shall determine and may rely on an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the Trust Fund to the extent not paid by the
related Mortgagor) to the effect that such modification, waiver or amendment
would not both (1) effect an exchange or reissuance of the Serviced Loan under
Treasury regulation section 1.860G-2(b) of the Code and (2) cause any REMIC Pool
to fail to qualify as a REMIC under the Code
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or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to Section
6.11, Section 6.12, the third paragraph of this Section 3.20(d) and any
applicable co-lender, intercreditor or similar agreement, including any related
Co-Lender Agreement, the Special Servicer may extend the date on which any
Balloon Payment is scheduled to be due in respect of a Specially Serviced Loan
if the conditions set forth in the proviso to the first sentence of the prior
paragraph are satisfied and the Special Servicer has obtained an Appraisal of
the related Mortgaged Property, in connection with such extension, which
Appraisal supports the determination of the Special Servicer contemplated by
clause (B) of the proviso to the first sentence of the immediately preceding
paragraph.
In no event will the Special Servicer (i) extend the maturity date of
a Mortgage Loan beyond a date that is two (2) years prior to the Rated Final
Distribution Date or, in connection with any such extension, in no event shall
the Special Servicer reduce the Mortgage Rate of a Mortgage Loan to less than
the least of (A) the original Mortgage Rate of such Mortgage Loan, (B) the
highest fixed Pass-Through Rate of any Class of Principal Balance Certificates
then outstanding and (C) a rate below the then prevailing interest rate for
comparable loans, as determined by the Special Servicer, or (ii) if the subject
Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee
simple interest), extend the maturity date of such Mortgage Loan beyond a date
which is less than 20 years (or, to the extent consistent with the Servicing
Standard, giving due consideration to the remaining term of such Ground Lease,
ten (10) years) prior to the expiration of the term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first sentence of the first paragraph of this Section
3.20(d) shall be evidenced by an Officer's Certificate to such effect delivered
to the Trustee and the Master Servicer and describing in reasonable detail the
basis for the Special Servicer's determination. The Special Servicer shall
append to such Officer's Certificate any information including but not limited
to income and expense statements, rent rolls, property inspection reports and
appraisals that support such determination.
(e) The Special Servicer or, with respect to subsection (h) below, the
Master Servicer may, as a condition to granting any request by a Mortgagor 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 and is permitted by
the terms of this Agreement, require that such Mortgagor pay to it: (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, provided that
such fee would not itself be a "significant modification" pursuant to Treasury
regulations section 1.1001-3(e)(2); and (ii) any related costs and expenses
incurred by it. In no event shall the Special Servicer or the Master Servicer be
entitled to payment for such fees or expenses unless such payment is collected
from the related Mortgagor.
(f) The Special Servicer shall notify the Master Servicer, any related
Sub-Servicers, the Trustee, the Controlling Class Representative (and, with
respect to any Loan Combination, and the related Non-Trust Loan Noteholder(s))
and the Rating Agencies, in writing, of any material modification, waiver or
amendment of any term of any Mortgage Loan (including fees charged the related
Mortgagor) and the date thereof, and shall deliver to the Custodian (with a copy
to the Master Servicer) for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within ten (10) Business Days)
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following the execution thereof. Copies of each agreement whereby any such
modification, waiver or amendment of any term of any Mortgage Loan is effected
shall be made available for review upon prior request during normal business
hours at the offices of the Special Servicer pursuant to Section 3.15 hereof.
(g) The Master Servicer shall not permit defeasance of any Mortgage
Loan (x) on or before the earliest date on which defeasance is permitted under
the terms of such Mortgage Loan, and (y) in a manner that is inconsistent with
the terms of such Mortgage Loan. Unless and except to the extent the Master
Servicer is precluded from preventing such defeasance by the related Mortgage
Loan documents or otherwise, the Master Servicer will not permit defeasance of
any Mortgage Loan, unless: (i) the defeasance collateral consists of "Government
Securities" within the meaning of the Investment Company Act of 1940, as
amended, (ii) the Master Servicer has determined that the defeasance will not
result in an Adverse REMIC Event (provided that the Master Servicer shall be
entitled to rely conclusively on an Opinion of Counsel to that effect), (iii)
the Master Servicer has notified the Rating Agencies, (iv) to the extent the
defeasance of the subject Mortgage Loan is required by the then-current
applicable Rating Agency criteria to be reviewed by a Rating Agency, such Rating
Agency has confirmed that such defeasance will not result in the qualification,
downgrade or withdrawal of the rating then assigned to any Class of Certificates
to which a rating has been assigned by such Rating Agency (provided that, (A) no
confirmation from Fitch shall be required if the subject Mortgage Loan being
defeased, together with all Mortgage Loans cross-collateralized with such
Mortgage Loan, (i) is not one of the ten (10) largest Mortgage Loans (or
cross-collateralized groups of Mortgage Loans) by Stated Principal Balance in
the Trust Fund, and (ii) has a Stated Principal Balance at the time of the
defeasance that is less than $20,000,000 and less than 5% of the then-aggregate
Stated Principal Balance of the Mortgage Loans and the Master Servicer shall
have delivered a Defeasance Certificate substantially in the form of Exhibit N
hereto, (v) the Master Servicer has requested and received from the related
Mortgagor (A) an Opinion of Counsel generally to the effect that the Trustee
will have a perfected, first priority security interest in such defeasance
collateral and (B) written confirmation from a firm of Independent accountants
stating that payments made on such defeasance collateral in accordance with the
terms thereof will be sufficient to pay the subject Mortgage Loan in full on or
before its Stated Maturity Date (or, in the case of an ARD Mortgage Loan, on or
before its Anticipated Repayment Date) and to timely pay each Periodic Payment
scheduled to be due prior thereto but after the defeasance and (vi) a single
purpose entity (as defined below) is designated to assume the Mortgage Loan and
own the Defeasance Collateral; provided that, if under the terms of the related
Mortgage Loan documents, the related Mortgagor delivers cash to purchase the
defeasance collateral rather than the defeasance collateral itself, the Master
Servicer shall purchase the U.S. government obligations contemplated by the
related Mortgage Loan documents. Subsequent to the second anniversary of the
Closing Date, to the extent that the Master Servicer may, in accordance with the
related Mortgage Loan documents, require defeasance of any Mortgage Loan in lieu
of accepting a prepayment of principal thereunder, including a prepayment of
principal accompanied by a Prepayment Premium or Yield Maintenance Charge, the
Master Servicer shall, to the extent it is consistent with the Servicing
Standard, require such defeasance; provided that the conditions set forth in
clauses (i) through (vi) of the preceding sentence have been satisfied. Any
customary and reasonable out-of-pocket expense incurred by the Master Servicer
pursuant to this Section 3.20(g) shall be paid by the Mortgagor of the defeased
Mortgage Loan pursuant to the related Mortgage, Mortgage Note or other pertinent
document. Notwithstanding the foregoing, if at any time, a court with
jurisdiction in the matter shall hold that the related Mortgagor may obtain a
release of the subject Mortgaged Property but is not obligated to deliver the
full amount of the defeasance collateral contemplated by the related Mortgage
Loan documents (or cash sufficient to purchase such defeasance collateral), then
the Master Servicer shall (i) if consistent
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with the related Mortgage Loan documents, refuse to allow the defeasance of the
subject Mortgage Loan or (ii) if the Master Servicer cannot so refuse and if the
related Mortgagor has delivered cash to purchase the defeasance collateral, the
Master Servicer shall either (A) buy such defeasance collateral or (B) prepay
the subject Mortgage Loan, in either case, in accordance with the Servicing
Standard. For purposes of this paragraph, a "single purpose entity" shall mean a
Person, other than an individual, whose organizational documents provide as
follows: it is formed solely for the purpose of owning and pledging the
Defeasance Collateral related to the Mortgage Loans; it may not engage in any
business unrelated to such Defeasance Collateral and the financing thereof; it
does not have and may not own any assets other than those related to its
interest in such Defeasance Collateral or the financing thereof and may not
incur any indebtedness other than as permitted by the related Mortgage; it shall
maintain its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person; it shall
hold regular meetings, as appropriate, to conduct its business, and shall
observe all entity-level formalities and record keeping; it shall conduct
business in its own name and use separate stationery, invoices and checks; it
may not guarantee or assume the debts or obligations of any other person; it
shall not commingle its assets or funds with those of any other person; it shall
pay its obligations and expenses from its own funds and allocate and charge
reasonably and fairly any common employees or overhead shared with affiliates;
it shall prepare separate tax returns and financial statements or, if part of a
consolidated group, shall be shown as a separate member of such group; it shall
transact business with affiliates on an arm's length basis pursuant to written
agreements; and it shall hold itself out as being a legal entity, separate and
apart from any other person. The single purpose entity organizational documents
shall provide that any dissolution and winding up or insolvency filing for such
entity requires the unanimous consent of all partners or members, as applicable,
and that such documents may not be amended with respect to the single purpose
entity requirements during the term of the subject Mortgage Loan.
(h) For any Serviced Loan other than a Specially Serviced Loan,
subject to the rights of the Special Servicer set forth in this Section 3.20,
and further subject to the rights of the Controlling Class Representative and
the Non-Trust Loan Noteholders set forth herein, including in Sections 3.21,
6.11 and 6.12 and, with respect to any Loan Combination, further subject to the
rights of the related Non-Trust Loan Noteholder(s) under the related Co-Lender
Agreement, the Master Servicer, without the consent of the Special Servicer or
the Controlling Class Representative, 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 Mortgagor; 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
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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
Mortgagor (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 Serviced Loan requiring a specified
number of days notice prior to a Principal Prepayment;
(v) approving modifications, consents or waivers (other than
those set forth in Section 3.20(c)) in connection with a defeasance
permitted by the terms of the related Mortgage Loan if the Master Servicer
receives an Opinion of Counsel (which Opinion of Counsel shall be an
expense of the Mortgagor) to the effect that such modification, waiver or
consent would not cause any REMIC Pool to fail to qualify as a REMIC under
the Code or result in a "prohibited transaction" under the REMIC
Provisions;
(vi) subject to Section 3.08(b), approving consents with respect
to non-material right-of-ways and non-material easements and consent to
subordination of the related Serviced Loan to such non-material
rights-of-way or easements; and
(vii) subject to Section 3.08, 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 Combination Mortgage Loan, the Master
Servicer shall provide written notice of such action to the related Non-Trust
Loan Noteholder(s); and provided, further that the Master Servicer shall
promptly notify the Special Servicer of any requests not subject to this Section
3.20(h) for which the Special Servicer is responsible pursuant to this Section
3.20 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 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.
(i) To the extent that either the Master Servicer or Special Servicer
waives any Penalty Interest or late charge in respect of any Mortgage Loan,
whether pursuant to Section 3.02(a) or this Section 3.20, the respective amounts
of additional servicing compensation payable to the Master Servicer and the
Special Servicer under Section 3.11 out of such Penalty Interest or late payment
charges shall be reduced proportionately, based upon the respective amounts that
had been payable thereto out of such Penalty Interest or late payment charges
immediately prior to such waiver.
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(j) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall take
the following action unless it has received prior written confirmation (the cost
of which shall be paid by the related Mortgagor, if so allowed by the terms of
the related loan documents) from the Rating Agencies that such action will not
result in a qualification, downgrade or withdrawal of any of the ratings
assigned by such Rating Agency to the Certificates:
(i) With respect to any Mortgaged Property that secures a
Mortgage Loan with an unpaid principal balance that is at least equal to
five percent (5%) of the then aggregate principal balance of all Mortgage
Loans or $20,000,000, the giving of any consent, approval or direction
regarding the termination of the related property manager or the
designation of any replacement property manager; and
(ii) With respect to each Mortgage Loan with an unpaid principal
balance that is equal to or greater than (A) five percent (5%) of the then
aggregate principal balance of all the Mortgage Loans or (B) $20,000,000
and which is secured by a Mortgaged Property which is a hospitality
property, the giving of any consent to any change in the franchise
affiliation of such Mortgaged Property.
(k) Notwithstanding anything to the contrary in this Agreement, any
modification, extension, waiver or amendment of the payment terms of a Loan
Combination shall be structured so as to be consistent with the allocation and
payment priorities in the related loan documents and the related Co-Lender
Agreement, such that neither the Trust as holder of the related Combination
Mortgage Loan, on the one hand, nor the related Non-Trust Loan Noteholder(s), on
the other hand, gains a priority over the other that is not reflected in the
loan documents and the related Co-Lender Agreement. Furthermore, to the extent
consistent with the Servicing Standard and the applicable Co-Lender Agreement
(taking into account the extent to which the related Non-Trust Loan(s) is
subordinate to the corresponding Combination Mortgage Loan): (i) no waiver,
reduction or deferral of any particular amounts due on a Combination Mortgage
Loan shall be effected prior to the waiver, reduction or deferral of the entire
corresponding item in respect of the related Non-Trust Loan(s); and (ii) no
reduction of the Mortgage Rate on a Combination Mortgage Loan shall be effected
prior to the reduction of the Mortgage Rate of the related Non-Trust Loan(s), to
the maximum extent possible.
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Serviced Loan, the Master Servicer or Special Servicer, whichever
made such determination, shall promptly notify the other such party, the
Controlling Class Representative and the Trustee (and, in the case of a Loan
Combination, the related Non-Trust Loan Noteholder(s)), and if the Master
Servicer is not also the Special Servicer, the Master Servicer shall immediately
deliver or cause to be delivered a copy of the related Mortgage File and
Servicing File, to the Special Servicer and shall use reasonable efforts to
provide the Special Servicer with all information, documents (or copies thereof)
and records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Serviced Loan, either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
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efforts to comply with the preceding sentence within five (5) Business Days of
the occurrence of each related Servicing Transfer Event; provided, however, if
the information, documents and records requested by the Special Servicer are not
contained in the Servicing File, the Master Servicer shall have such period of
time as reasonably necessary to make such delivery. Notwithstanding the
occurrence of a Servicing Transfer Event, the Master Servicer shall continue to
receive payments on the subject Serviced Loan (including amounts collected by
the Special Servicer).
Upon determining that a Specially Serviced Loan has become a Corrected
Loan and if the Master Servicer is not also the Special Servicer, the Special
Servicer shall immediately give notice thereof to the Master Servicer and,
within five (5) Business Days of the occurrence, shall return the related
Mortgage File to the Custodian and the related Servicing File, together with all
other information, documents and records that were not part of the Servicing
File when it was delivered to the Special Servicer, to the Master Servicer (or
such other Person as may be directed by the Master Servicer). Upon giving such
notice, and returning such Servicing File, to the Master Servicer (or such other
Person as may be directed by the Master Servicer), the Special Servicer's
obligation to service such Serviced Loan, and the Special Servicer's right to
receive the Special Servicing Fee with respect to such Serviced Loan, shall
terminate, and the obligations of the Master Servicer to service and administer
such Serviced Loan shall resume.
(b) In servicing any Specially Serviced Loans, 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 (with a
copy of each such original to the Master Servicer), and copies of any additional
related Serviced Loan information, including correspondence with the related
Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer and each Rating Agency (or such other Person as
may be directed by the Master Servicer) a statement in writing and in computer
readable format (the form of such statement to be agreed upon by the Master
Servicer) describing, on a loan-by-loan and property-by-property basis, (1)
insofar as it relates to Specially Serviced Mortgage Loans and REO Properties,
the information described in clauses (x) through (xvii) of Section 4.02(a) and,
insofar as it relates to the Special Servicer, the information described in
clauses (xxvii), (xxviii) and (xxix) of Section 4.02(a), (2) the amount of all
payments, Insurance Proceeds and Liquidation Proceeds received, and the amount
of any Realized Loss incurred, with respect to each Specially Serviced Mortgage
Loan during the related Collection Period, and the amount of all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
requested by the Special Servicer and made by the Special Servicer with respect
to each Specially Serviced Mortgage Loan and REO Property during the related
Collection Period and (4) such additional information relating to the Specially
Serviced Mortgage Loans and REO Properties as the Master Servicer reasonably
requests to enable it to perform its responsibilities under this Agreement.
Notwithstanding the foregoing provisions of this subsection (c), the Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and REO Properties and shall provide the
Special Servicer with any information reasonably available to the Master
Servicer required by the Special Servicer to perform its duties under this
Agreement.
(d) No later than 30 days after a Serviced Loan becomes a Specially
Serviced Loan, the Special Servicer shall prepare (subject to Section 6.11 and
Section 6.12) and deliver to each Rating Agency, the Trustee, the Master
Servicer and the Controlling Class Representative (and, in the case of a
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Loan Combination, the related Non-Trust Loan Noteholder(s)), a report (the
"Asset Status Report") with respect to such Mortgage Loan and the related
Mortgaged Property. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Loan and
negotiations with the related Mortgagor;
(ii) 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 Specially Serviced Mortgage Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Appraised Value of the related Mortgaged Property
together with the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard, the terms hereof 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; provided that, subject to Section 6.11
and Section 6.12, the Special Servicer may, from time to time, modify any Asset
Status Report it has previously delivered and implement such report.
No direction of the Controlling Class Representative or a Loan
Combination Controlling Party with respect to the preparation of an Asset Status
Report shall (a) require or cause the Master Servicer or the Special Servicer to
violate the terms of a Specially Serviced Loan, applicable law or any provision
of this Agreement, including the Master Servicer's or the Special Servicer's, as
the case may be, obligation to act in accordance with the Servicing Standard and
to maintain the REMIC status of each REMIC Pool, (b) result in the imposition of
a "prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions or (c) expose the Master Servicer, the Special Servicer, the
Depositor, any of the Mortgage Loan Sellers, the Trust Fund or the Trustee or
the officers and the directors of each party to claim, suit or liability or (d)
materially expand the scope of the Master Servicer's, Trustee's or Special
Servicer's responsibilities under this Agreement.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the Special
Servicer may enter into Sub-Servicing Agreements to provide for the performance
by third parties of any or all of their respective obligations hereunder;
provided that, in each case, the Sub-Servicing Agreement: (i) is
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consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and includes events of default with respect to the Sub-Servicer substantially
similar to the Events of Default set forth in Section 7.01(a) hereof to the
extent applicable (modified to apply to the Sub-Servicer instead of the Master
Servicer); (ii) provides that if the Master Servicer or the Special Servicer, as
the case may be, shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), the Trustee
or its designee may thereupon assume all of the rights and, except to the extent
such obligations arose prior to the date of assumption, obligations of the
Master Servicer or the Special Servicer, as the case may be, under such
agreement or (except with respect only to the Sub-Servicing Agreements in effect
as of the date of this Agreement) may terminate such subservicing agreement
without cause and without payment of any penalty or termination fee (other than
the right of reimbursement and indemnification); (iii) provides that the
Depositor (insofar as such agreement relates to the performance of duties that
affect the ability of the Depositor to comply with its reporting requirements
under the Exchange Act with respect to the Subject Securitization Transaction)
and the Trustee, for the benefit of the Certificateholders and, in the case of a
Sub-Servicing Agreement relating to a Loan Combination, the related Non-Trust
Loan Noteholder(s), shall be third-party beneficiaries under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii)) none of the Trustee,
the Trust Fund, the Depositor, any successor Master Servicer or Special
Servicer, as the case may be, any Non-Trust Loan Noteholder or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty; (v) with respect to any
Sub-Servicing Agreement entered into by the Special Servicer, does not permit
the Sub-Servicer to enter into or consent to any modification, waiver or
amendment or otherwise take any action on behalf of the Special Servicer
contemplated by Section 3.20 hereof without the consent of such Special Servicer
or conduct any foreclosure action contemplated by Section 3.09 hereof or sale of
a Mortgage Loan or REO Property contemplated by Section 3.18 hereof; (vi) does
not permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund; and (vii) provides that, if the
Sub-Servicer constitutes an Additional Item 1123 Servicer, then it will deliver
to the applicable parties an Annual Statement of Compliance in respect of the
Sub-Servicer as and when contemplated by Section 3.13 and, if the Sub-Servicer
constitutes a Sub-Servicing Function Participant, then it will deliver, or cause
to be delivered, to the applicable parties, an Annual Assessment Report in
respect of the Sub-Servicer and a corresponding Annual Attestation Report (and
the consent of the applicable registered public accounting firm to file it with
the Commission) as and when contemplated by Section 3.14. In addition, each
Sub-Servicing Agreement entered into by the Master Servicer shall provide that
such agreement shall be subject to Section 3.21 hereof with respect to any
Serviced Loan that becomes a Specially Serviced Loan. The Master Servicer and
the Special Servicer shall each deliver to the Trustee and to each other copies
of all Sub-Servicing Agreements, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents. References in this Agreement to actions taken or to be taken by the
Master Servicer or the Special Servicer include actions taken or to be taken by
a Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer hereunder to make P&I Advances or Servicing Advances shall be deemed to
have been advanced by the Master Servicer or the Special Servicer, as the case
may be, out of its own funds and, accordingly, such P&I Advances or Servicing
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were the Master Servicer or the Special
Servicer, as the case may be. For
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so long as they are outstanding, Advances shall accrue interest in accordance
with Sections 3.03(d) and 4.03(d), such interest to be allocable between the
Master Servicer or the Special Servicer, as the case may be, and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law. The Master Servicer
and the Special Servicer shall each notify the Trustee and the Depositor in
writing, promptly upon becoming aware thereof, whether any Sub-Servicer
constitutes an Additional Item 1123 Servicer or a Sub-Servicing Function
Participant. Each of the initial Master Servicer and the initial Special
Servicer hereby represents and warrants that, as of the Closing Date, it has not
retained and does not expect to retain any particular Person or group of
affiliated Persons (other than a Designated Sub-Servicer) to act as a Servicer
with respect to five percent (5%) or more of the Mortgage Pool (by balance).
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of a Loan Combination,
also for the benefit of the related Non-Trust Loan Noteholder(s), shall (at no
expense to the Trustee, the Certificateholders, such Non-Trust Loan
Noteholder(s) or the Trust Fund) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Serviced Loans; provided that
the Master Servicer shall not be required to prosecute claims against a
Designated Sub-Servicer for the failure of such Sub-Servicer to perform
obligations that affect the Depositor's ability to comply with its reporting
requirements under the Exchange Act with respect to the Subject Securitization
Transaction or any securitization involving the issuance of Non-Trust Loan
Securities. Subject to the terms of the related Sub-Servicing Agreement, the
Master Servicer and the Special Servicer may each have the right to remove a
Sub-Servicer at any time it considers such removal to be in the best interests
of Certificateholders.
(d) In the event of the resignation, removal or other termination of
Midland or any successor Master Servicer hereunder for any reason, the Trustee
or other Person succeeding such resigning, removed or terminated party as Master
Servicer, shall elect, with respect to any Sub-Servicing Agreement in effect as
of the date of this Agreement: (i) to assume the rights and obligations of the
Master Servicer under such Sub-Servicing Agreement and continue the
sub-servicing arrangements thereunder on the same terms (including without
limitation the obligation to pay the same sub-servicing fee); (ii) to enter into
a new Sub-Servicing Agreement with such Sub-Servicer on such terms as the
Trustee or other successor Master Servicer and such Sub-Servicer shall mutually
agree (it being understood that such Sub-Servicer is under no obligation to
accept any such new Sub-Servicing Agreement or to enter into or continue
negotiations with the Trustee or other successor Master Servicer in which case
the existing Sub-Servicing Agreement shall remain in effect); or (iii) to
terminate the Sub-Servicing Agreement if an Event of Default (as defined in such
Sub-Servicing Agreement) has occurred and is continuing or otherwise in
accordance with the Sub-Servicing Agreement, in each case without paying any
sub-servicer termination fee.
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Each Sub-Servicing Agreement will provide, among other things, that
the Master Servicer or the Trustee and their respective successors may at its
sole option, terminate any rights the Sub-Servicer may have thereunder with
respect to any or all Mortgage Loans if Xxxxx'x (i) reduces the rating assigned
to one or more Classes of the Certificates as a result of the sub-servicing of
the Mortgage Loans by the Sub-Servicer, or (ii) advises the Master Servicer or
the Trustee in writing that it will cause a qualification, downgrade or
withdrawal of such rating due to the continued servicing by the Sub-Servicer
(and such qualification, downgrade or withdrawal of the ratings shall not have
been withdrawn by Xxxxx'x within 45 days of the date that the Master Servicer or
the Trustee obtained such actual knowledge).
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and any affected Non-Trust Loan Noteholders for the
performance of their respective obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if each alone were servicing and administering the
Serviced Loans or REO Properties for which it is responsible. The Master
Servicer and the Special Servicer shall each be responsible, without any right
of reimbursement, for all fees and other compensation and other amounts of
Sub-Servicers retained by it.
(f) The Special Servicer shall not enter into a Sub-Servicing
Agreement unless Xxxxx'x has confirmed in writing that the execution of such
agreement will not result in a qualification, downgrade, or withdrawal of the
then-current ratings on the outstanding Certificates or such Sub-Servicing
Agreement relates to a Mortgage Loan or Mortgage Loans (along with any Mortgage
Loans previously sub-serviced pursuant to this Section) that represent less than
25% of the outstanding principal balance of all Specially Serviced Mortgage
Loans. The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder. Furthermore, notwithstanding anything herein to the contrary, until
the Trustee files a Form 15 with respect to the Trust in accordance with Section
8.15, neither the Master Servicer nor the Special Servicer shall retain or
engage any Additional Item 1123 Servicer or Sub-Servicing Function Participant
without the express written consent of the Depositor (which consent shall not be
unreasonably withheld). As of the Closing Date, the Depositor hereby consents to
the retention or engagement of each Designated Sub-Servicer that is an
Additional Item 1123 Servicer or a Sub-Servicing Function Participant, but only
with respect to the Mortgage Loans to be serviced thereby as identified on
Exhibit K hereto.
SECTION 3.23 Representations and Warranties of Master Servicer and
Special Servicer.
(a) The Master Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to the
Depositor, the Special Servicer and the Non-Trust Loan Noteholders, as of the
Closing Date, that:
(i) The Master Servicer is a corporation, duly organized under
the laws of the State of Delaware, and the Master Servicer is in compliance
with the laws of each State in which any 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,
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will not violate the Master Servicer's organizational documents or
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
by which it is bound.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable receivership, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) 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 violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that 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 (calculated, with respect to the initial Master
Servicer, on a consolidated basis).
(vii) The net worth of the Master Servicer (or, in the case of
the initial Master Servicer, the consolidated net worth thereof and of its
direct or indirect parent), determined in accordance with generally
accepted accounting principles, is not less than $15,000,000.
(viii) 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 of, 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 prior to the actual
performance by such Master Servicer of its obligations under this
Agreement, or which, if not obtained would not have a materially adverse
effect on the ability of such Master Servicer to perform its obligations
hereunder.
(ix) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
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(x) The Master Servicer is on S&P's Select Servicer List as a
U.S. Commercial Mortgage Master Servicer and is rated "CMS3" by Fitch.
(b) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor, the Master Servicer and the Non-Trust Loan Noteholders, as of the
Closing Date, that:
(i) The Special Servicer is a corporation duly organized under
the laws of the Commonwealth of Virginia, validly existing and in
compliance with the laws of each State in which any 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, will not violate the Special Servicer's
organizational documents or 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 by which it is bound.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
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 violation of, and its
execution and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer that 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) Each officer, director and employee of the Special Servicer
and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of Serviced
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
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(viii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
(ix) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(x) The Special Servicer is on S&P's Select Servicer List as a
U.S. Commercial Mortgage Special Servicer and is rated "CSS3" by Fitch.
(c) The representations and warranties of the Master Servicer and the
Special Servicer, set forth in Section 3.23(a) (with respect to the Master
Servicer) and Section 3.23(b) (with respect to the Special Servicer),
respectively, shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties hereto.
(d) Any successor Master Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
(e) Any successor Special Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.23(b), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(b)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty.
The Master Servicer, in such capacity, hereby represents and warrants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Depositor and the Special Servicer, as of the Closing Date, that each
Sub-Servicing Agreement in effect as of the Closing Date and to which the Master
Servicer is a party, satisfies the requirements for such Sub-Servicing
Agreements set forth in Sections 3.22(a) and the second paragraph of 3.22(d) in
all material respects.
SECTION 3.25 Designation of Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Voting
Rights allocated to the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including, without limitation, those specified in Section 6.11) or to replace
an existing Controlling Class Representative. Upon (i) the receipt by the
Trustee of written requests for the selection of a Controlling Class
Representative from the Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of
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Certificates representing more than 50% of the Voting Rights allocated to the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process for selecting a
Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Voting Rights allocated to the
Controlling Class by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee and the Master Servicer with written confirmation of
its acceptance of such appointment, an address and facsimile number for the
delivery of notices and other correspondence and a list of officers or employees
of such Person with whom the parties to this Agreement may deal (including their
names, titles, work addresses and facsimile numbers); provided that the initial
Controlling Class Representative shall be JER Investors Trust Inc. without need
for further designation or notice.
(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Trustee shall, to the extent in its possession, deliver to the requesting party
the identity of the Controlling Class Representative and a list of each Holder
(or, in the case of Book-Entry Certificates, to the extent actually known to a
Responsible Officer of the Trustee or identified thereto by the Depository or
the Depository Participants, each Certificate Owner) of the Controlling Class,
including, in each case, names and addresses. With respect to such information,
the Trustee shall be entitled to conclusively rely on information provided to it
by the Depository, and the Master Servicer and the Special Servicer shall be
entitled to conclusively rely on such information provided by the Trustee with
respect to any obligation or right hereunder that the Master Servicer and the
Special Servicer may have to deliver information or otherwise communicate with
the Controlling Class Representative or any of the Holders (or, if applicable,
Certificate Owners) of the Controlling Class. In addition to the foregoing,
within two (2) Business Days of the selection, resignation or removal of a
Controlling Class Representative, the Trustee shall notify the other parties to
this Agreement of such event. The expenses incurred by the Trustee in connection
with obtaining information from the Depository or Depository Participants with
respect to any Book-Entry Certificate shall be expenses of the Trust Fund
payable out of the Collection Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign as such
by giving written notice to the Trustee and to each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Voting Rights allocated to the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant
to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless the Holders (or, in the case of Book-Entry
Certificates, the Certificate Owners) of Certificates representing more than 50%
of the Voting Rights allocated to the Controlling Class, by aggregate
Certificate Principal Balance, or such Controlling Class Representative, as
applicable, shall have notified the Trustee and each other Holder (or, in the
case of
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Book-Entry Certificates, Certificate Owner) of the Controlling Class, in
writing, of the resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall
be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust Fund. Notwithstanding
the foregoing, if a claim is made against the Controlling Class Representative
by a Mortgagor with respect to this Agreement or any particular Mortgage Loan,
the Controlling Class Representative shall immediately notify the Trustee, the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer or
the Trust Fund are also named parties to the same action and, in the sole
judgment of the Special Servicer, (i) the Controlling Class Representative had
acted in good faith, without negligence or willful misfeasance with regard to
the particular matter, and (ii) there is no potential for the Special Servicer
or the Trust Fund to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
Fund shall, subject to Section 6.03, assume the defense of any such claim
against the Controlling Class Representative. This provision shall survive the
termination of this Agreement and the termination or resignation of the
Controlling Class Representative.
SECTION 3.26 Servicing of and Certain Matters Regarding a Loan
Combination.
(a) Subject to the related Co-Lender Agreement, each Loan Combination
shall be serviced pursuant to this Agreement as Serviced Loan(s), and servicing
and administration of the related Non-Trust Loan(s) shall continue hereunder for
so long as the related Combination Mortgage Loan(s) or any related Loan
Combination REO Property is part of the Trust Fund or for such longer period as
any amounts payable by the related Non-Trust Loan Noteholder(s) to or for the
benefit of the Trust Fund or any party hereto in accordance with the related
Co-Lender Agreement remain due and owing; provided, however, if a Non-Trust Loan
is securitized, the Master Servicer's servicing obligations and duties with
respect to such Non-Trust Loan shall be limited to those obligations and duties
described in the related Co-Lender Agreement and this Agreement. In addition,
the obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee shall terminate with
respect to a Non-Trust Loan if, when and to the extent that (i) the related
Combination Mortgage Loan has been paid in full or is no longer part of the
Trust Fund, (ii) the related Loan Combination REO Property is no longer part of
the Trust Fund and (iii) no amounts payable by the related Non-Trust Loan
Noteholder to or for the benefit of the Trust Fund or any party hereto in
accordance with the related Co-Lender Agreement remain due and owing.
(b) Notwithstanding the foregoing, the following considerations shall
apply with respect to the servicing of a Non-Trust Loan:
(i) none of the Master Servicer, the Special Servicer or the
Trustee shall make any P&I Advance in respect of, or any Servicing Advance
solely in respect of, a Non-Trust Loan; and
(ii) the Master Servicer and the Special Servicer shall each
consult with and obtain the consent of the related Non-Trust Loan
Noteholder(s) to the extent required by the related Co-Lender Agreement.
(c) Except in the case of the ShopKo Portfolio Loan Combination, which
is specifically addressed in Section 6.12, the Master Servicer shall timely
provide to each Non-Trust Loan
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Noteholder any reports or notices required to be delivered to such Non-Trust
Loan Noteholder pursuant to the related Co-Lender Agreement, and the Special
Servicer shall cooperate with the Master Servicer in preparing/delivering any
such report or notice with respect to special servicing matters.
(d) Except in the case of the ShopKo Portfolio Loan Combination, which
is specifically addressed in Section 6.12, the parties hereto acknowledge that,
with respect to a Combination Mortgage Loan, the related Non-Trust Loan
Noteholder(s) have certain consent and direction rights as set forth in the
related Co-Lender Agreement and agree to take such actions contemplated by the
related Co-Lender Agreement as may be expressly contemplated thereby, or
otherwise reasonably necessary, to allow the related Non-Trust Loan
Noteholder(s) to exercise such rights.
(e) The parties hereto acknowledge that a Non-Trust Loan Noteholder
shall not (1) owe any fiduciary duty to the Trustee, the Master Servicer, the
Special Servicer or any Certificateholder or (2) have any liability to the
Trustee or the Certificateholders for any action taken, or for refraining from
the taking of any action pursuant to the related Co-Lender Agreement or the
giving of any consent or for errors in judgment. Each Certificateholder, by its
acceptance of a Certificate, shall be deemed to have confirmed its understanding
that a Non-Trust Loan Noteholder (i) may take or refrain from taking actions
that favor its interests or the interests of its affiliates over the
Certificateholders, (ii) may have special relationships and interests that
conflict with the interests of the Certificateholders and shall be deemed to
have agreed to take no action against a Non-Trust Loan Noteholder or any of its
officers, directors, employees, principals or agents as a result of such special
relationships or conflicts, and (iii) shall not be liable by reason of its
having acted or refrained from acting solely in the interests of such Non-Trust
Loan Noteholder or its affiliates.
(f) The parties hereto, the Controlling Class Representative, by its
acceptance of its rights and obligations set forth herein, and each
Certificateholder, by its acceptance of a Certificate, hereby acknowledge the
right of a Non-Trust Loan Noteholder, upon the occurrence of certain specified
events under the related Co-Lender Agreement, to purchase the related
Combination Mortgage Loan from the Trust, subject to the terms, conditions and
limitations set forth in, and at the price specified in the related Co-Lender
Agreement, and the parties hereto agree to take such actions contemplated by
such Co-Lender Agreement as may be expressly contemplated thereby, or otherwise
reasonably necessary, to allow such Non-Trust Loan Noteholder to purchase the
related Combination Mortgage Loan from the Trust. Such purchase right of the
related Non-Trust Loan Noteholder(s) shall be superior to the corresponding
purchase options set forth in Section 3.18(c).
(g) In connection with any purchase of a Combination Mortgage Loan,
pursuant to or as contemplated by Section 3.26(f), the Master Servicer or the
Special Servicer shall (i) if it receives the applicable purchase price (as
provided in the related Co-Lender Agreement) and/or any other amounts payable in
connection with the purchase, deposit same, or remit same to the Master Servicer
for deposit, as applicable, into the Collection Account and so notify the
Trustee; and (ii) deliver the related Servicing File to the Person effecting the
purchase or its designee. In addition, upon its receipt of a Request for Release
from the Master Servicer, the Trustee shall: (i) deliver the related Mortgage
File to the Person effecting the purchase or its designee; and (ii) execute and
deliver such endorsements, assignments and instruments of transfer as shall be
provided to it and are reasonably necessary to vest ownership of such
Combination Mortgage Loan in the appropriate transferee, without recourse,
representations or warranties.
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(h) Each of the rights of a Non-Trust Loan Noteholder under or
contemplated by this Section 3.26 shall be exercisable by a designee thereof on
its behalf; provided that the Master Servicer, the Special Servicer and the
Trustee are provided with written notice by the related Non-Trust Loan
Noteholder of such designation (upon which such party may conclusively rely) and
the contact details of the designee.
(i) If a Non-Trust Loan Noteholder purchases the related Combination
Mortgage Loan as contemplated by Section 3.26(f), or if any Person purchases
such Combination Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section
3.18, then (subject to the related Co-Lender Agreement) the Person effecting the
purchase must also pay and/or reimburse to the Master Servicer, the Special
Servicer, the Trustee and the Depositor the respective amounts then currently
due and owing to them hereunder with respect to the related Non-Trust Loan and
that, pursuant to the related Co-Lender Agreement, would otherwise have been
payable out of future collections on such Non-Trust Loan. Notwithstanding
anything herein to the contrary, but subject to the related Co-Lender Agreement,
any such purchase shall be subject to such reimbursements.
(j) Any reference to servicing any of the Mortgage Loans in accordance
with any of the related loan documents (including the related Mortgage Note and
Mortgage) shall also mean, in the case of a Loan Combination, in accordance with
the related Co-Lender Agreement.
(k) The parties hereto recognize and acknowledge the respective rights
of a Non-Trust Loan Noteholder under the related Co-Lender Agreement.
(l) In the case of the ShopKo Portfolio Loan Combination, this Section
3.26 is in addition to the provisions of Section 6.12, that specifically relate
to such Loan Combination. In the event of any conflict between the terms of this
Section 3.26 (insofar as it relates to either Loan Combination) and the terms of
the related Co-Lender Agreement, the related Co-Lender Agreement shall control.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
(a) On each Distribution Date, through and including the final
Distribution Date, the Trustee shall, based on, among other things, information
provided by the Master Servicer and, if applicable, the Special Servicer,
withdraw from the Distribution Account and apply the Available Distribution
Amount for such Distribution Date, such application to be for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
(i) to make distributions of interest to the Holders of the Class
A-1, Class A-2, Class A-SB and Class A-3 Certificates, from the Loan Group
No. 1 Available Distribution Amount, in an amount equal to, and pro rata as
among those Classes of Senior Certificates in accordance with, all
Distributable Certificate Interest in respect of each such Class of Senior
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates; and concurrently, to make
distributions of interest to the Holders of the Class A-1A Certificates,
from the Loan Group No. 2 Available Distribution Amount in an amount equal
to all Distributable Certificate Interest in respect of the Class A-1A
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates; and also concurrently, to make
distributions of interest to the Holders of the Class X Certificates, from
the Loan Group No. 1 Available Distribution Amount and/or the Loan Group
No. 2 Available Distribution Amount, in an amount equal to all
Distributable Certificate Interest in respect of the Class X Certificates
for such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates; provided, however, that if the Loan Group No. 1
Available Distribution Amount and/or the Loan Group No. 2 Available
Distribution Amount is insufficient to pay in full the Distributable
Certificate Interest payable as described above in respect of any Class of
Senior Certificates on such Distribution Date, then the entire Available
Distribution Amount shall be applied to make distributions of interest to
the Holders of the respective Classes of the Senior Certificates, up to an
amount equal to, and pro rata as among the respective Classes of Senior
Certificates in accordance with, the Distributable Certificate Interest in
respect of each such Class of Senior Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(ii) to make distributions of principal, first, to the Holders of
the Class A-SB Certificates, until the related Class Principal Balance
(after taking into account all Certificate Deferred Interest added thereto
on such Distribution Date) is reduced to the Class A-SB Planned Principal
Balance for such Distribution Date, and second, to the Holders of the Class
A-1 Certificates, until the related Class Principal Balance of the Class
A-1 Certificates (after taking into account all Certificate Deferred
Interest added thereto on such Distribution Date) is reduced to zero, and
third, to the Holders of the Class A-2 Certificates, until the related
Class Principal Balance of the Class A-2 Certificates (after taking into
account all Certificate Deferred Interest added thereto on such
Distribution Date) is reduced to zero, and fourth, to the Holders of the
Class A-SB Certificates until the related Class Principal Balance of the
Class A-SB Certificates (after taking into account all Certificate Deferred
Interest added thereto, and any distributions of principal made with
respect to the Class A-SB Certificates pursuant to subclause first of this
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clause (ii), on such Distribution Date) is reduced to zero, and fifth, to
the Holders of the Class A-3 Certificates, until the related Class
Principal Balance of the Class A-3 Certificates (after taking into account
all Certificate Deferred Interest added thereto on such Distribution Date)
is reduced to zero, in that order, in an aggregate amount for subclauses
first through fifth of this clause (ii) (not to exceed the aggregate of the
Class Principal Balances of the Class A-1, Class A-2, Class A-SB and Class
A-3 Certificates outstanding immediately prior to, together with all
Certificate Deferred Interest with respect to the Class A-1, Class A-2,
Class A-SB and Class A-3 Certificates for, such Distribution Date) equal to
the Loan Group No. 1 Principal Distribution Amount for such Distribution
Date; and concurrently, to make distributions of principal to the Holders
of the Class A-1A Certificates, in an amount (not to exceed the Class
Principal Balance of the Class A-1A Certificates outstanding immediately
prior to, together with all Certificate Deferred Interest with respect to
the Class A-1A Certificates for, such Distribution Date) equal to the Loan
Group No. 2 Principal Distribution Amount for such Distribution Date;
provided that, if the portion of the Available Distribution Amount for such
Distribution Date remaining after the distributions of interest made
pursuant to the immediately preceding clause (i) is less than the Principal
Distribution Amount for such Distribution Date, then the Holders of the
Class A-1, Class A-2, Class A-SB and Class A-3 Certificates shall have a
prior right, relative to the Holders of the Class A-1A Certificates, to
receive their distributions of principal pursuant to this clause (ii) out
of the remaining portion of the Loan Group No. 1 Available Distribution
Amount for such Distribution Date, and the Holders of the Class A-1A
Certificates shall have a prior right, relative to the Holders of the Class
A-1, Class A-2, Class A-SB and Class A-3 Certificates, to receive their
distributions of principal pursuant to this clause (ii) out of the
remaining portion of the Loan Group No. 2 Available Distribution Amount for
such Distribution Date; and provided, further, that, notwithstanding the
foregoing, if the aggregate of the Class Principal Balances of the 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 has previously been reduced to zero, or if the subject
Distribution Date is the final Distribution Date, then distributions of
principal will be made to the Holders of the Class X-0, Xxxxx X-0, Class
A-SB, Class A-3 and Class A-1A Certificates pursuant to this clause (ii) up
to an amount equal to, and pro rata as among such Classes of Senior
Certificates in accordance with, the Class Principal Balance of each such
Class of Senior Certificates outstanding immediately prior to, together
with all Certificate Deferred Interest with respect to the subject Class of
Senior Certificates for, such Distribution Date (and without regard to Loan
Groups or the Principal Distribution Amount for such Distribution Date);
(iii) after the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, to make distributions of principal,
first, to the Holders of the Class A-SB Certificates, until related Class
Principal Balance (after taking into account all Certificate Deferred
Interest added thereto, and any distributions of principal made with
respect to the Class A-SB Certificates pursuant to the immediately
preceding clause (ii), on such Distribution Date) is reduced to the Class
A-SB Planned Principal Balance for such Distribution Date, and second, to
the Holders of the Class A-1 Certificates, until the related Class
Principal Balance of the Class A-1 Certificates (after taking into account
all Certificate Deferred Interest added thereto, and any distributions of
principal in reduction thereof pursuant to the immediately preceding clause
(ii), on such Distribution Date) is reduced to zero, and third, to the
Holders of the Class A-2 Certificates, on a pro rata basis by balance,
until the related Class Principal Balance of the Class A-2 Certificates
(after taking into account all Certificate Deferred Interest added thereto,
and any distributions of principal in reduction thereof pursuant to the
immediately preceding clause (ii), on such Distribution Date) is reduced to
zero, and fourth, to the Holders of the Class A-SB Certificates until the
related Class Principal Balance of the Class A-SB Certificates (after
taking into account all Certificate Deferred Interest added thereto, and
any distributions of principal in reduction thereof pursuant to the
immediately preceding clause (ii) and/or subclause first of this clause
(iii), on such Distribution Date) is reduced to zero, and fifth, to the
holders of the Class A-3 Certificates, until the related Class Principal
Balance of the Class A-3 Certificates (after taking into account all
Certificate Deferred Interest added thereto, and any distributions of
principal in reduction thereof pursuant to the immediately
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preceding clause (ii), on such Distribution Date) is reduced to zero, in
that order, up to an aggregate amount for subclauses first through fifth of
this clause (iii) (not to exceed the aggregate of the Class Principal
Balances of the Class A-1, Class A-2, Class A-SB and Class A-3 Certificates
outstanding immediately prior to, together with all Certificate Deferred
Interest with respect to the Class A-1, Class A-2, Class A-SB and Class A-3
Certificates for, such Distribution Date, reduced by any distributions of
principal made with respect to the Class A-1, Class A-2, Class A-SB and
Class A-3 Certificates on such Distribution Date pursuant to the
immediately preceding clause (ii)) equal to the excess, if any, of (A) the
Loan Group No. 2 Principal Distribution Amount for such Distribution Date,
over (B) the distributions of principal made with respect to the Class A-1A
Certificates on such Distribution Date pursuant to the immediately
preceding clause (ii);
(iv) after the aggregate of the Class Principal Balances of the
Class A-1, Class A-2, Class A-SB and Class A-3 Certificates has been
reduced to zero, to make distributions of principal to the Holders of the
Class A-1A Certificates, up to an amount (not to exceed the Class Principal
Balance of the Class A-1A Certificates outstanding immediately prior to,
together with all Certificate Deferred Interest with respect to the Class
A-1A Certificates for, such Distribution Date, reduced by any distributions
of principal made with respect to the Class A-1A Certificates on such
Distribution Date pursuant to clause (ii) above) equal to the excess, if
any, of (A) the Loan Group No. 1 Principal Distribution Amount for such
Distribution Date, over (B) the aggregate distributions of principal made
with respect to the Class A-1, Class A-2, Class A-SB and/or Class A-3
Certificates on such Distribution Date pursuant to clause (ii) above;
(v) to make distributions to the Holders of the Class X-0, Xxxxx
X-0, Class A-SB, Class A-3 and Class A-1A Certificates, up to an amount
equal to, pro rata as among such Classes of Senior Class A Certificates in
accordance with, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to each such
Class of Senior Certificates and not previously reimbursed;
(vi) to make distributions of interest to the Holders of the
Class A-M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(vii) after the Class Principal Balances of the Class X-0, Xxxxx
X-0, Class A-SB, Class A-3 and Class A-1A Certificates have been reduced to
zero, to make distributions of principal to the Holders of the Class A-M
Certificates, up to an amount (not to exceed the Class Principal Balance of
the Class A-M Certificates outstanding immediately prior to, together with
all Certificate Deferred Interest with respect to the Class A-M
Certificates for, such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution
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Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any Class of Senior Class A Certificates pursuant to any
prior clause of this Section 4.01(a)); provided that, on the final
Distribution Date, distributions of principal pursuant to this clause (vii)
shall be made up to the Class Principal Balance of the Class A-M
Certificates outstanding immediately prior to, together with all
Certificate Deferred Interest with respect to the Class A-M Certificates
for, such Distribution Date;
(viii) to make distributions to the Holders of the Class A-M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class A-M Certificates and not previously reimbursed;
(ix) to make distributions of interest to the Holders of the
Class A-J Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(x) after the Class Principal Balance of the Class A-M
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class A-J Certificates, up to an amount (not to
exceed the Class Principal Balance of the Class A-J Certificates
outstanding immediately prior to, together with all Certificate Deferred
Interest with respect to the Class A-J Certificates for, such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
provided that, on the final Distribution Date, distributions of principal
pursuant to this clause (x) shall be made up to the Class Principal Balance
of the Class A-J Certificates outstanding immediately prior to, together
with all Certificate Deferred Interest with respect to the Class A-J
Certificates for, such Distribution Date; and
(xi) to make distributions to the Holders of the remaining
Classes of the Regular Certificates as provided in Section 4.01(b).
All distributions of interest, if any, made with respect to the Class
X Certificates on any Distribution Date, pursuant to this Section 4.01(a), shall
be made, and shall be deemed to have been made, in respect of the various Class
X Components, pro rata in accordance with the respective amounts of
Distributable Component Interest in respect of such Class X Components for such
Distribution Date and, to the extent not previously deemed paid pursuant to this
paragraph, for all prior Distribution Dates, if any.
(b) On each Distribution Date, through and including the final
Distribution Date, after making the distributions with respect to the Senior
Certificates, the Class A-M Certificates and the Class A-J Certificates provided
for in Section 4.01(a), the Trustee shall, based on, among other things,
information provided by the Master Servicer and, if applicable, the Special
Servicer, apply the remaining portion, if any, of the Available Distribution
Amount for such Distribution to make the distributions described in the next
paragraph to the Holders of the various Classes of the Class B Through P
Certificates, such distributions to be made sequentially among such Classes of
Certificateholders in the alphabetic order of the Class designations of their
respective Certificates (beginning with the Class B Certificates and ending with
the Class P Certificates), in each case to the
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extent of the Remaining Available Distribution Amount with respect to the
subject Class of Certificates for such Distribution Date.
On each Distribution Date, through and including the final
Distribution Date, the Holders of each Class of the Class B Through P
Certificates will be entitled to receive, subject to the Remaining Available
Distribution Amount with respect to such Class of Certificates for such
Distribution Date, the following distributions in the following order of
priority, in each case to the extent of the remaining available funds:
first, distributions of interest, up to an amount equal to all
Distributable Certificate Interest with respect to the subject Class of
Certificates for such Distribution Date and, to the extent not previously
received, for all prior Distribution Dates, if any;
second, distributions of principal, up to an amount (not to exceed the
Class Principal Balance of the subject Class of Certificates outstanding
immediately prior to, together with all Certificate Deferred Interest with
respect to the subject Class of Certificates for, such Distribution Date)
equal to the Remaining Principal Distribution Amount with respect to the
subject Class of Certificates for such Distribution Date (or, if such
Distribution Date is the final Distribution Date, then up to an amount
equal to the entire Class Principal Balance of the subject Class of
Certificates immediately prior to such Distribution Date); and
third, reimbursements of any and all Realized Losses and Additional
Trust Fund Expenses, if any, previously allocated to the subject Class of
Certificates pursuant to Section 4.04(a) and not previously reimbursed;
provided that no distributions of principal will be made with respect to any
Class of the Class B Through P Certificates until the reduction to zero of the
Class Principal Balance of each Class of the Class X-0, Xxxxx X-0, Class A-SB,
Class A-3, Class A-1A, Class A-M and Class A-J Certificates, as well as the
Class Principal Balance of each other Class of the Class B Through P
Certificates, if any, that has an earlier alphabetic Class designation (that is,
"Class B" comes before "Class C", "Class C" comes before "Class D", and so
forth) than does the subject Class of Certificates.
(c) On each Distribution Date, through and including the Final
Distribution Date, after making the distributions with respect to the Regular
Certificates provided for in Sections 4.01(a) and 4.01(b), the Trustee shall
apply the remaining portion, if any, of the Available Distribution Amount for
such Distribution Date to make distributions to the Holders of the Class R
Certificates.
(d) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts that represent Prepayment Premiums and/or Yield
Maintenance Charges actually received on the Mortgage Loans and any REO Mortgage
Loans during the related Collection Period (in each case, net of any Liquidation
Fees payable in connection with the receipt thereof) and shall be deemed to
distribute each such Prepayment Premium and/or Yield Maintenance Charge from
REMIC I to REMIC II in respect of REMIC I Regular Interest A-1 (whether or not
such REMIC I Regular Interest has received all distributions of interest and
principal to which it is entitled), and then shall distribute each such
Prepayment Premium and/or Yield Maintenance Charge, as additional yield, as
follows:
(i) first, to the Holders of the respective Classes of Principal
Balance Certificates (other than any Excluded Class thereof) entitled to
distributions of principal on such Distribution Date, pursuant to Section
4.01(a) or 4.01(b), as applicable, with respect to the Loan
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Group that includes the prepaid Mortgage Loan or REO Mortgage Loan, as the
case may be, up to an amount equal to, and pro rata based on, the
Additional Yield Amounts for each such Class of Certificates for such
Distribution Date with respect to the subject Prepayment Premium or Yield
Maintenance Charge, as the case may be; and
(ii) second, to the Holders of the Class X Certificates, up to
any remaining portion of such Yield Maintenance Charges and/or Prepayment
Premiums.
Any distributions of additional interest, in the form of Yield
Maintenance Charges and/or Prepayment Premiums, made with respect to the Class X
Certificates on any Distribution Date pursuant to this Section 4.01(d) shall be
allocated among the respective Class X Components on a pro rata basis in
accordance with the relative amounts by which their respective Component
Notional Amounts declined as a result of deemed distributions of principal on
the REMIC I Regular Interests on such Distribution Date pursuant to Section
4.01(k) (or, if there were no such declines, then on a pro rata basis in
accordance with the relative sizes of their respective Component Notional
Amounts).
(e) On each Distribution Date, the Trustee shall withdraw from the
Additional Interest Account any amounts that represent Additional Interest
actually collected during the related Collection Period on the ARD Mortgage
Loans and any successor REO Mortgage Loans with respect thereto and shall
distribute such amounts to the Holders of the Class Y Certificates.
(f) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class on each Distribution Date shall be made to the Certificateholders of the
respective Class of record at the close of business on the related Record Date
and shall be made by wire transfer of immediately available funds to the account
of any such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions no less than five (5) Business Days prior to (or, in
the case of the first Distribution Date, no later than) the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Principal Balance
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in a like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Prior
to any termination of the Trust Fund pursuant to Section 9.01, any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing. If such check
is returned to the Trustee, the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in
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trust hereunder. If the Trustee has not, after having taken such reasonable
steps, located the related Holder by the second anniversary of the initial
sending of a check, the Trustee shall, subject to applicable law, distribute the
unclaimed funds to the Holders of the Class R Certificates. Distributions in
reimbursement of Realized Losses and Additional Trust Fund Expenses previously
allocated to a Class of Principal Balance Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
(g) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law. The Trustee and the Depositor shall perform their
respective obligations under a Letter of Representations among the Depositor,
the Trustee and the Initial Depository dated as of the Closing Date.
(h) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund in respect of the Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(i) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that, or receives written notification that, the final distribution with
respect to any Class of Certificates (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to such Class of Certificates) will be made on the next
Distribution Date, the Trustee shall, as soon as reasonably possible (and, in
any event, no later than five (5) days after the related Determination Date),
mail to each Holder of record on such date of such Class of Certificates a
notice to the effect that:
(i) the Trustee expects 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 Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of
such Class 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
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(i) shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not
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have been surrendered for cancellation, the Trustee, directly or through an
agent, shall take such steps to contact the remaining non-tendering
Certificateholders concerning the surrender of their Certificates as it shall
deem appropriate. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders following the first anniversary of the
delivery of such second notice to the non-tendering Certificateholders shall be
paid out of such funds. No interest shall accrue or be payable to any former
Holder on any amount held in trust pursuant to this paragraph. If all of the
Certificates shall not have been surrendered for cancellation by the second
anniversary of the delivery of the second notice, the Trustee shall, subject to
applicable law, distribute to the Holders of the Class R Certificates all
unclaimed funds and other assets which remain subject thereto.
(j) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The Certificate Registrar
shall promptly provide the Trustee with any IRS Forms W-9, W-8BEN, W-8IMY (and
all appropriate attachments) or W-8ECI upon its receipt thereof. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
(k) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the final Distribution
Date) pursuant to Section 4.01(a), Section 4.01(b) or Section 4.01(l) shall be
deemed to have first been distributed from REMIC I to REMIC II with respect to
the Corresponding REMIC I Regular Interest for such Class of Certificates; and
all distributions made with respect to the Class X Certificates on each
Distribution Date pursuant to Section 4.01(a) and allocable to any particular
Class X Component, shall be deemed to have first been distributed from REMIC I
to REMIC II in respect of the Corresponding REMIC I Regular Interest for such
Class X Component. In each case, if such distribution on any Class of Regular
Certificates was a distribution of accrued interest, of principal or in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated thereto, then the corresponding distribution deemed to be made on a
REMIC I Regular Interest pursuant to the preceding sentence shall be deemed to
also be, respectively, a distribution of accrued interest, of principal or in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such REMIC I Regular Interest.
(l) On each Distribution Date, the Trustee shall withdraw amounts from
the Gain-on-Sale Reserve Account and shall distribute such amounts to reimburse
the Holders of each Class of Principal Balance Certificates (in the same order
of payment as provided for such reimbursements in Section 4.01(a)) up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated thereto and remaining unreimbursed after application
of the Available Distribution Amount for such Distribution Date. Amounts paid
from the Gain-on-Sale Reserve Account pursuant to the preceding sentence shall
first be deemed to have been distributed to the Corresponding REMIC I Regular
Interest in reimbursement of Realized Losses and Additional Trust Fund Expenses
previously allocated thereto. Amounts paid from the Gain-on-Sale Reserve Account
will not reduce the Class Principal Balances of the respective Classes of the
Principal Balance Certificates with respect to which such distributions are
being made. Any amounts remaining in the Gain-on-Sale Reserve Account after such
distributions shall be applied to offset future Realized Losses and Additional
Trust Fund
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Expenses and upon termination of the Trust Fund, any amounts remaining in the
Gain-on-Sale Reserve Account shall be distributed to the Class R
Certificateholders.
SECTION 4.02 Statements to Certificateholders: CMSA Loan Periodic
Update File.
(a) On each Distribution Date, the Trustee shall make available or
forward by mail (or by electronic transmission acceptable to the recipient) to
each Certificateholder, each initial Certificate Owner and (upon written request
made to the Trustee) each subsequent Certificate Owner (as identified to the
reasonable satisfaction of the Trustee), the Depositor, the Master Servicer, the
Special Servicer, each Non-Trust Loan Noteholder, the Underwriters and each
Rating Agency, a statement substantially in the form attached hereto as Exhibit
F (a "Distribution Date Statement"), as to the distributions made on such
Distribution Date, based on, among other things, information provided to it by
the Master Servicer and, if applicable, the Special Servicer, setting forth,
without limitation:
(i) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates allocable to
principal;
(ii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Certificates allocable to interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Certificates allocable to Prepayment
Premiums and/or Yield Maintenance Charges;
(iv) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Certificates in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses;
(v) the total payments and other collections Received by the
Trust during the related Collection Period, the fees and expenses paid
therefrom (with an identification of the general purpose of such fees and
expenses and the party receiving such fees and expenses), and the Available
Distribution Amount, the Loan Group No. 1 Available Distribution Amount and
the Loan Group No. 2 Available Distribution Amount for such Distribution
Date;
(vi) (A) the aggregate amount of P&I Advances made in respect of
such Distribution Date with respect to the Mortgage Pool pursuant to
Section 4.03, including, without limitation, any amounts applied pursuant
to Section 4.03(a)(ii), and the aggregate amount of xxxxxxxxxxxx X&X
Advances with respect to the Mortgage Pool that had been outstanding at the
close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer, the Trustee
or any Fiscal Agent in respect of such xxxxxxxxxxxx X&X Advances in
accordance with Section 4.03(d) as of the close of business on the related
Determination Date, (B) the aggregate amount of unreimbursed Servicing
Advances as of the close of business on the related Determination Date and
(C) the aggregate amount of all unreimbursed Nonrecoverable Advances as of
the close of business on the related Determination Date;
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(vii) the aggregate unpaid principal balance of the Mortgage
Pool, Loan Group No. 1 and Loan Group No. 2, respectively, outstanding as
of the close of business on the related Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage
Pool, Loan Group No. 1 and Loan Group No. 2, respectively, outstanding
immediately before and immediately after such Distribution Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the close of business on the related Determination
Date;
(x) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date) and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent
more than 89 days, (D) as to which foreclosure proceedings have been
commenced, and (E) to the actual knowledge of the Master Servicer or
Special Servicer in bankruptcy proceedings;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, and (C) a brief
description of any executed loan modification;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the aggregate of all Liquidation
Proceeds and other amounts received in connection with such Liquidation
Event (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Realized Loss
in connection with such Liquidation Event;
(xiii) with respect to any Mortgage Loan that was the subject of
any material modification, extension or waiver during the related
Collection Period, (A) the loan number thereof, (B) the unpaid principal
balance thereof and (C) a brief description of such modification, extension
or waiver, as the case may be;
(xiv) with respect to any Mortgage Loan as to which an uncured
and unresolved Breach or Document Defect that materially and adversely
affects the value of such Mortgage Loan or the interests of the
Certificateholders therein is alleged to exist, (A) the loan number
thereof, (B) the unpaid principal balance thereof, (C) a brief description
of such Breach or Document Defect, as the case may be, and (D) the status
of such Breach or Document Defect, as the case may be, including any
actions known to the Trustee that are being taken by or on behalf of the
applicable Mortgage Loan Seller with respect thereto;
(xv) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the loan number of such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan as of the related date of acquisition;
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(xvi) with respect to any REO Property that was included (or an
interest in which was included) in the Trust Fund as of the close of
business on the related Determination Date, the loan number of the related
Mortgage Loan, the book value of such REO Property and the amount of REO
Revenues and other amounts, if any, received by the trust with respect to
such REO Property during the related Collection Period (separately
identifying the portion thereof allocable to distributions on the
Certificates) and, if available, the Appraised Value of such REO Property
as expressed in the most recent appraisal thereof and the date of such
appraisal;
(xvii) with respect to any REO Property included in the Trust
Fund as to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Final Recovery Determination (separately identifying
the portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in respect of the related REO Mortgage
Loan in connection with such Final Recovery Determination;
(xviii) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular Certificates for
such Distribution Date;
(xix) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Certificates, after giving effect to the
distributions made on such Distribution Date;
(xx) the Pass-Through Rate for each Class of Regular Certificates
for such Distribution Date;
(xxi) the Principal Distribution Amount, the Loan Group No. 1
Principal Distribution Amount and the Loan Group No. 2 Principal
Distribution Amount for such Distribution Date, separately identifying the
respective components thereof (and, in the case of any Principal Prepayment
or other unscheduled collection of principal received during the related
Collection Period, the loan number for the related Mortgage Loan and the
amount of such prepayment or other collection of principal);
(xxii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period;
(xxiii) the aggregate of all Realized Losses and Additional Trust
Fund Expenses that were allocated on such Distribution Date;
(xxiv) the Class Principal Balance of each Class of Principal
Balance Certificates and the Class Notional Amount of the Class X
Certificates outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein due to the
allocation of Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xxv) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
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(xxvi) the aggregate amount of interest on P&I Advances paid to
the Master Servicer, the Trustee and any Fiscal Agent with respect to the
Mortgage Pool during the related Collection Period in accordance with
Section 4.03(d);
(xxvii) the aggregate amount of interest on Servicing Advances
paid to the Master Servicer, the Trustee, any Fiscal Agent and the Special
Servicer with respect to the Mortgage Pool during the related Collection
Period in accordance with Section 3.03(d);
(xxviii) the aggregate amount of servicing compensation
(separately identifying the amount of each category of compensation) paid
to the Master Servicer and the Special Servicer during the related
Collection Period;
(xxix) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount as of the related Determination Date;
(xxx) the then-current credit support levels for each Class of
Regular Certificates;
(xxxi) the original and then-current ratings for each Class of
Regular Certificates;
(xxxii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges with respect to the Mortgage Pool and each Loan Group
collected during the related Collection Period;
(xxxiii) the amounts, if any, actually distributed with respect
to the Class Y Certificates or Class R Certificates on such Distribution
Date;
(xxxiv) a brief description of any uncured Event of Default known
to the Trustee (to the extent not previously reported) and, as determined
and/or approved by the Depositor, any other information necessary to
satisfy the requirements of Item 1121(a) of Regulation AB that can, in the
Trustee's reasonable judgment, be included on the Distribution Date
Statement without undue difficulty; and
(xxxv) the Record Date, the Interest Accrual Period, the
Determination Date and the Collection Period that correspond to such
Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xvii), (xxviii) and
(xxxiv) above, insofar as the underlying information is solely within the
control of the Special Servicer, the Trustee and the Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer.
The Trustee may rely on and shall not be responsible absent manifest
error for the content or accuracy of any information provided by third parties
for purposes of preparing the Distribution Date Statement and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
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On each Distribution Date, the Trustee shall make available to each
Privileged Person (or, following receipt of written direction of the Depositor,
the general public) via its Internet Website, (i) the related Distribution Date
Statement, (ii) the CMSA Loan Periodic Update File, CMSA Loan Setup File, CMSA
Bond Level File, and CMSA Collateral Summary File, (iii) the Unrestricted
Servicer Reports, (iv) as a convenience for Privileged Persons (or, following
receipt of the written direction from the Depositor specified in the first
parenthetical in this sentence, interested parties) (and not in furtherance of
the distribution thereof under the securities laws), the Prospectus Supplement,
the Prospectus and this Agreement, and (v) any other items at the request of the
Depositor.
In addition, on each Distribution Date, the Trustee shall make
available via its Internet Website, on a restricted basis, (i) the Restricted
Servicer Reports, (ii) the CMSA Property File and (iii) any other items at the
request of the Depositor. The Trustee shall provide access to such restricted
reports, upon request, to each Privileged Person.
The Trustee shall not be obligated to make any representation or
warranty 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 the Trustee for which it is not the original source.
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 and in compliance with the terms of this Agreement.
Absent manifest error, none of the Master Servicer or the Special
Servicer shall be responsible for the accuracy or completeness of any
information supplied to it by a Mortgagor or third party that is included in any
reports, statements, materials or information prepared or provided by the Master
Servicer or the Special Servicer, as applicable. The Trustee shall not be
responsible absent manifest error for the accuracy or completeness of any
information supplied to it for delivery pursuant to this Section 4.02(a).
Neither the Trustee, the Master Servicer nor the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Mortgagor or third party.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon request, send 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 such Certificateholder
during such calendar year (or the applicable portion thereof that such Person
was a Certificateholder) pursuant to clauses (i), (ii), (iii) and (iv) of the
description of "Distribution Date Statement" above and such other information as
may be required to enable such Certificateholder to prepare their federal income
tax returns. Such information shall include the amount of original issue
discount accrued on each Class of Certificates 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.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall mail or cause the mailing of, or provide
electronically or cause the provision electronically
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of, such statements, reports and/or other written information to such
Certificate Owner upon the request of such Certificate Owner made in writing to
the Corporate Trust Office (accompanied by current verification of such
Certificate Owner's ownership interest). Such portion of such information as may
be agreed upon by the Depositor and the Trustee shall be furnished to any such
Person via overnight courier delivery or facsimile from the Trustee; provided
that the cost of such overnight courier delivery or facsimile shall be an
expense of the party requesting such information.
The Trustee shall only be obligated to deliver the statements, reports
and information contemplated by this Section 4.02(a) to the extent it receives
the necessary underlying information from the Special Servicer or Master
Servicer, as applicable, 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 or
the Master Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
(b) Not later than 12:00 p.m., New York City time, on the second
Business Day preceding each Distribution Date, the Master Servicer shall furnish
to the Trustee, the Depositor, the Special Servicer and the Underwriters, by
electronic transmission (or in such other form to which the Trustee, the
Depositor, the Special Servicer or the Underwriters, as the case may be, and the
Master Servicer may agree), an accurate and complete CMSA Loan Periodic Update
File providing the required information for the Mortgage Loans as of such
Determination Date. Not later than 2:00 p.m. New York City time on the second
Business Day preceding each Distribution Date, the Master Servicer shall deliver
to the Trustee notice of the Discount Rate applicable to each Principal
Prepayment received in the related Collection Period.
In the performance of its obligations set forth in Section 4.05, and
its other duties hereunder, the Trustee may conclusively rely on reports
provided to it by the Master Servicer, and the Trustee shall not be responsible
to recompute, recalculate or verify the information provided to it by the Master
Servicer. In the case of information to be furnished by the Master Servicer to
the Trustee pursuant to this Section 4.02(b), insofar as such information is
solely within the control of the Special Servicer, the Master Servicer shall
have no obligation to provide such information until it has received such
information from the Special Servicer, shall not be in default hereunder due to
a delay in providing a complete CMSA Loan Periodic Update File caused by the
Special Servicer's failure to timely provide any report required under this
Agreement and may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer.
SECTION 4.03 P&I Advances.
(a) On or before 1:30 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall (i) apply amounts in the Collection Account
received after the end of the related Collection Period or otherwise held for
future distribution to Certificateholders in subsequent months in discharge of
its obligation to make P&I Advances or (ii) subject to Section 4.03(c) below,
remit from its own funds to the Trustee for deposit into the Distribution
Account an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date. The Master Servicer may also
make P&I Advances in the form of any combination of clauses (i) and (ii) above
aggregating the total amount of P&I Advances to be made. Any amounts held in the
Collection Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in the Master
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Servicer's records and replaced by the Master Servicer by deposit in the
Collection Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and interest in respect of which such P&I Advances were
made). If, as of 3:00 p.m., New York City time, on any P&I Advance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
(000) 000-0000 or (000) 000-0000 (or such alternative number provided by the
Master Servicer to the Trustee in writing) as soon as possible, but in any event
before 4:00 p.m., New York City time, on such P&I Advance Date. If the Trustee
does not receive the full amount of such P&I Advances by 10:00 a.m., New York
City time, on the related Distribution Date, then, subject to Section 4.03(c),
(i) the Trustee (or a Fiscal Agent on its behalf) shall, no later than 11:00
a.m., New York City time, on such related Distribution Date make the portion of
such P&I Advances that was required to be, but was not, made by the Master
Servicer on such P&I Advance Date, and (ii) the provisions of Sections 7.01 and
7.02 shall apply. If the Trustee fails to make any such P&I Advance on the
related Distribution Date, but any Fiscal Agent makes such P&I Advance on such
date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or any Fiscal Agent in respect of the Mortgage Pool for
any Distribution Date shall, subject to Section 4.03(c) below, be equal to the
aggregate of all Periodic Payments (other than Balloon Payments) and any Assumed
Periodic Payments, net of related Master Servicing Fees, due or deemed due, as
the case may be, in respect of the Mortgage Loans (including, without
limitation, Balloon Mortgage Loans delinquent as to their respective Balloon
Payments) and any REO Mortgage Loans on their respective Due Dates during the
related Collection Period to the extent such amount was not paid by or on behalf
of the related Mortgagor or otherwise collected (including as net income from
REO Properties) as of the close of business on the last day of related
Collection Period; provided that, (i) if the Periodic Payment on any Mortgage
Loan has been reduced in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.20, or if the final
maturity on any Mortgage Loan shall be extended in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or a modification, waiver
or amendment granted or agreed to by the Special Servicer pursuant to Section
3.20, and the Periodic Payment due and owing during the extension period is less
than the related Assumed Periodic Payment, then the Master Servicer, the Trustee
or any Fiscal Agent shall, as to such Mortgage Loan only, advance only the
amount of the Periodic Payment due and owing after taking into account such
reduction (net of related Master Servicing Fees) in the event of subsequent
delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction
Amount exists with respect to any Required Appraisal Mortgage Loan (or that an
Appraisal Reduction Amount exists with respect to the ShopKo Portfolio Loan
Combination and a portion is allocable to the ShopKo Portfolio Mortgage Loan or
any successor REO Mortgage Loan with respect thereto), then, with respect to the
Distribution Date immediately following the date of such determination and with
respect to each subsequent Distribution Date for so long as such Appraisal
Reduction Amount exists, the Master Servicer, the Trustee or the Fiscal Agent
(if any) will be required in the event of subsequent delinquencies to advance in
respect of the subject Mortgage Loan or REO Mortgage Loan, as the case may be,
only an amount equal to the sum of (A) the amount of the interest portion of the
P&I Advance that would otherwise be required without regard to this clause (y),
minus 1/12th of the product of (1)
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such Appraisal Reduction Amount (or, in the case of the ShopKo Portfolio
Mortgage Loan or any successor REO Mortgage Loan with respect thereto, solely
the portion of any Appraisal Reduction Amount with respect to the ShopKo
Portfolio Loan Combination that is allocable to such Mortgage Loan or REO
Mortgage Loan, as the case may be, in accordance with, or as contemplated by,
the definition of "Appraisal Reduction Amount") and (2) the weighted average of
the per annum Pass-Through Rates for such Distribution Date applicable to the
respective Classes of Principal Balance Certificates to which such Appraisal
Reduction Amount (or the applicable portion thereof) is allocated pursuant to
Section 4.04(e), weighted on the basis of the respective portions of such
Appraisal Reduction Amount allocable to such Classes, and (B) the amount of the
principal portion of the P&I Advance that would otherwise be required without
regard to this clause (y).
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer 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 an Officer's Certificate delivered to the Fiscal Agent (if any),
the Trustee and the Depositor on or before the related P&I Advance Date, setting
forth the basis for such determination, together with any other information,
including Appraisals (the cost of which may be paid out of the Collection
Account pursuant to Section 3.03(e)) (or, if no such Appraisal has been
performed pursuant to this Section 4.03(c), a copy of an Appraisal of the
related Mortgaged Property performed within the twelve (12) months preceding
such determination), related Mortgagor operating statements and financial
statements, budgets and rent rolls of the related Mortgaged Properties,
engineers' reports, environmental surveys and any similar reports that the
Master Servicer may have obtained consistent with the Servicing Standard and at
the expense of the Trust Fund, that support such determination by the Master
Servicer. In making a recoverability determination the applicable Person will be
entitled, but not obligated, to consider (among other things) the obligations of
the related Mortgagor under the terms of the related Mortgage Loan as it may
have been modified, to consider (among other things) the related Mortgaged
Property in its "as is" or then current conditions and occupancies, as modified
by such Person's reasonable assumptions (consistent with the Servicing Standard)
regarding the possibility and effects of future adverse change with respect to
such Mortgaged Property, to estimate and consider (among other things) future
expenses, to estimate and consider (consistent with the Servicing Standard)
(among other things) the timing of recoveries, and to consider the existence and
amount of any outstanding Nonrecoverable Advances the reimbursement of which is
being deferred pursuant to Section 3.05(a), together with (to the extent accrued
and unpaid) interest on such Advances. In addition, any such Person may update
or change its recoverability determinations at any time, and the Master Servicer
(consistent with the Servicing Standard) and the Trustee each may obtain from
the Special Servicer any Appraisals or market value estimates or other
information in the Special Servicer's possession for such purposes.
With respect to the ShopKo Portfolio Mortgage Loan or any successor
REO Mortgage Loan with respect thereto, the Master Servicer shall make its
determination that it has made a Nonrecoverable P&I Advance on such Mortgage
Loan or any successor REO Mortgage Loan with respect thereto or that any
proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance
with respect to such Mortgage Loan or any successor REO Mortgage Loan with
respect thereto independently of any determination made by the servicer with
respect to a commercial mortgage securitization holding the promissory note for
one of the ShopKo Portfolio Non-Trust Loans. If the Master Servicer determines,
in accordance with the provisions of this Agreement, that a proposed P&I Advance
with respect to the ShopKo Portfolio Mortgage Loan or any successor REO Mortgage
Loan
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with respect thereto, if made, or any outstanding P&I Advance with respect to
such Mortgage Loan or any successor REO Mortgage Loan with respect thereto
previously made, would be, or is, as applicable, a Nonrecoverable Advance, the
Master Servicer will be required to provide the servicer of each securitization
that holds the promissory note for a ShopKo Portfolio Non-Trust Loan written
notice of such determination within one (1) Business Day of the date of such
determination.
On the fourth Business Day before each Distribution Date, the Special
Servicer shall report to the Master Servicer the Special Servicer's
determination as to whether each P&I Advance made with respect to any previous
Distribution Date or required to be made with respect to such Distribution Date
with respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan is a
Nonrecoverable P&I Advance. The Master Servicer, the Trustee and the Fiscal
Agent (if any) shall rely, conclusively, on such determination that a P&I
Advance is or would be a Nonrecoverable P&I Advance, and may rely conclusively
on such a determination that a P&I Advance is not or would not be a
Nonrecoverable P&I Advance. The Trustee and the Fiscal Agent (if any) shall be
entitled to rely, conclusively, on any determination by the Master Servicer that
a P&I Advance, if made, would be a Nonrecoverable P&I Advance (and the Trustee
or the Fiscal Agent (if any), as applicable, shall rely on the Master Servicer's
determination that the P&I Advance would be a Nonrecoverable P&I Advance if the
Trustee or the Fiscal Agent (if any), as applicable, determines that it does not
have sufficient time to make such determination); provided, however, that, if
the Master Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer that such P&I Advance would be
Nonrecoverable P&I Advance, the Trustee or the Fiscal Agent (if any) shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee or the Fiscal Agent (if any), as applicable, in good faith, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable P&I Advance. In determining whether or not a
P&I Advance previously made is, or a proposed P&I Advance, if made, would be, a
Nonrecoverable Advance, the Trustee shall be subject to the standards set forth
in Section 8.01(a) hereunder and the Fiscal Agent (if any) shall use its
reasonable good faith judgment.
(d) In connection with the recovery by the Master Servicer, the
Trustee or any Fiscal Agent of any P&I Advance out of the Collection Account
pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer
shall be entitled to pay itself, the Trustee or such Fiscal Agent, as the case
may be, out of any amounts then on deposit in the Collection Account, interest
at the Reimbursement Rate in effect from time to time, compounded annually,
accrued on the amount of such P&I Advance (to the extent made with its own
funds) from the date made (provided, however, no such interest shall accrue
during any grace period under a Mortgage Loan) to but not including the date of
reimbursement such interest to be payable, first out of late payment charges and
Penalty Interest on deposit in the Collection Account that were received on the
related Mortgage Loan or REO Property during the Collection Period in which such
reimbursement is made, and then from general collections on the Mortgage Pool
then on deposit in the Collection Account; provided, however, that if such P&I
Advance was made with respect to a Combination Mortgage Loan or any successor
REO Mortgage Loan with respect thereto, then such interest on such P&I Advance
shall first be payable out of amounts on deposit in the related Loan Combination
Custodial Account in accordance with, and if available pursuant to, Section
3.05(e). Subject to the fourth paragraph of Section 3.05(a), the Master Servicer
shall reimburse itself, the Trustee or the Fiscal Agent (if any), as applicable,
for any outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose have been received by the Master Servicer, and in no
event shall interest accrue in accordance with this Section 4.03(d) on any P&I
Advance as to which the corresponding payment of principal and interest or Late
Collection was received by the Master Servicer on or prior to the related P&I
Advance Date.
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(e) In no event shall the Master Servicer, the Trustee or any Fiscal
Agent make a P&I Advance with respect to any Non-Trust Loan.
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Mortgage Deferred Interest;
Allocation of Appraisal Reduction Amounts; and Allocation
of Prepayment Interest Shortfalls.
(a) On each Distribution Date, following all distributions to be made
on such date pursuant to Section 4.01, the Trustee shall allocate to the
respective Classes of Principal Balance Certificates as follows the aggregate of
all Realized Losses and Additional Trust Fund Expenses that were incurred at any
time following the Cut-off Date through the end of the related Collection Period
and in any event that were not previously allocated pursuant to this Section
4.04(a) on any prior Distribution Date, but only to the extent that (i) the
aggregate Certificate Principal Balance of the Principal Balance Certificates as
of such Distribution Date (after taking into account all of the distributions
made on such Distribution Date pursuant to Section 4.01), exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date: first, sequentially to the Class
P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class
F, Class E, Class D, Class C, Class B, Class A-J and Class A-M Certificates, in
that order, in each case until the remaining Class Principal Balance thereof has
been reduced to zero; and, then, pro rata (based on remaining Class Principal
Balances) to the Class A-1 Certificates, the Class A-2 Certificates, the Class
A-SB Certificates, the Class A-3 Certificates and the Class A-1A Certificates,
until the respective remaining Class Principal Balances thereof are reduced to
zero. Any allocation of Realized Losses and Additional Trust Fund Expenses to a
Class of Principal Balance Certificates shall be made by reducing the Class
Principal Balance thereof by the amount so allocated. All Realized Losses and
Additional Trust Fund Expenses, if any, 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. All
Realized Losses and Additional Trust Fund Expenses, if any, that have not been
allocated to the Principal Balance Certificates as of the Distribution Date on
which the aggregate of the Class Principal Balances of such Principal Balance
Certificates has been reduced to zero, shall be deemed allocated to the Class R
Certificates.
(b) If the Class Principal Balance of any Class of Principal Balance
Certificates is reduced on any Distribution Date pursuant to Section 4.04(a),
then the REMIC I Principal Balance of such Class' Corresponding REMIC I Regular
Interest shall be deemed to have first been reduced by the exact same amount.
All such reductions in the REMIC I Principal Balances of the respective REMIC I
Regular Interests shall be deemed to be an allocation of Realized Losses and
Additional Trust Fund Expenses.
(c) On each Distribution Date, the amount of any Mortgage Deferred
Interest added to the unpaid principal balance of any Mortgage Loan during the
related Collection Period will be allocated as Certificate Deferred Interest to
the respective Classes of Principal Balance Certificates as follows: first,
sequentially, to the Class P, Class O, Class N, Class M, Class L, Class K, Class
J, Class H, Class G, Class F, Class E, Class D, Class C, Class B, Class A-J and
Class A-M Certificates, in that order, in each case up to the amount of the
Accrued Certificate Interest with respect to the subject Class of Certificates
for such Distribution Date; and then, to the Class A-1 Certificates, Class A-2
Certificates, Class A-SB Certificates, Class A-3 Certificates and Class A-1A
Certificates, up to an amount equal to, and pro rata as among such Classes of
Certificates in accordance with, the Accrued
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Certificate Interest in respect of each such Class of Certificates for such
Distribution Date. On each Distribution Date, the Class Principal Balance of
each Class of Principal Balance Certificates to which Mortgage Deferred Interest
has been allocated shall be increased by the amount of Certificate Deferred
Interest with respect to such Class of Certificates for such Distribution Date.
The amount of Mortgage Deferred Interest allocated to any Class of Principal
Balance Certificates on any Distribution Date shall be allocated as REMIC I
Deferred Interest to, and will increase the REMIC I Principal Balance of, such
Class' Corresponding REMIC I Regular Interest. The allocations provided for in
this Section 4.04(c) shall be made prior to any distributions or deemed
distributions required to be made hereunder on the subject Distribution Date.
(d) Any Appraisal Reduction Amount shall be allocated, only for
purposes of determining the amount of P&I Advances with respect to the related
Required Appraisal Mortgage Loan and as otherwise contemplated by the definition
of "Voting Rights", as follows: first, to the Class P, Class O, Class N, Class
M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class
C, Class B, Class A-J and Class A-M Certificates, in that order, up to the
amount of their respective Class Principal Balances; and, then, pro rata (based
on remaining Class Principal Balances) to the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-SB Certificates, the Class A-3 Certificates and
the Class A-1A Certificates. On any Distribution Date, an Appraisal Reduction
Amount that otherwise would be allocated to a Class of Certificates shall be
allocated to the next most subordinate Class to the extent that the Class
Principal Balance on such Distribution Date for such Class of Certificates
(prior to taking the Appraisal Reduction Amount into account) is less than the
Appraisal Reduction Amount for the Distribution Date. The Master Servicer shall
report to the Trustee on or before each Determination Date all Appraisal
Reduction Amounts, and the Trustee shall report to the Master Servicer no later
than 10:00 a.m. on the related P&I Advance Date the Pass-Through Rates necessary
to calculate the reductions in P&I Advances required by Section 4.03.
(e) The Net Aggregate Prepayment Interest Shortfall for any
Distribution Date shall be allocated to each Class of Regular Certificates in an
amount equal to the product of (i) the amount of such Net Aggregate Prepayment
Interest Shortfall, multiplied by (ii) a fraction, the numerator of which is the
Accrued Certificate Interest with respect to such Class of Regular Certificates
for such Distribution Date (net, in the case of a Class of Principal Balance
Certificates of any Certificate Deferred Interest with respect to such Class of
Principal Balance Certificates for such Distribution Date), and the denominator
of which is the aggregate Accrued Certificate Interest with respect to all the
Classes of Regular Certificates for such Distribution Date (net of the aggregate
Certificate Deferred Interest with respect to all the Classes of Principal
Balance Certificates for such Distribution Date). The portion of the Net
Aggregate Prepayment Interest Shortfall for any Distribution Date that is
allocable to any Class of Regular Certificates (and, more particularly, in the
case of the Class X Certificates, to a particular Class X Component thereof)
shall be deemed to have first been allocated to such Class' (or, if applicable,
to such Class X Component's) Corresponding REMIC I Regular Interest.
SECTION 4.05 Calculations.
The Trustee shall, provided it receives the necessary information from
the Master Servicer and the Special Servicer, be responsible for performing all
calculations necessary in connection with the actual and deemed distributions
and allocations to be made pursuant to Section 4.01, Section 5.02(d) and Article
IX and the actual and deemed allocations of Realized Losses, Additional Trust
Fund Expenses and other items to be made pursuant to Section 4.04. The Trustee
shall calculate the Available Distribution Amount for each Distribution Date and
shall allocate such amount among
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Certificateholders in accordance with this Agreement, and the Trustee shall have
no obligation to recompute, recalculate or verify any information provided to it
by the Special Servicer or Master Servicer. The calculations by the Trustee of
such amounts shall, in the absence of manifest error, be presumptively deemed to
be correct for all purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0, X-0 and A-7, respectively;
provided that 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.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03, beneficial ownership interests in the
Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Regular Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances or initial Certificate Notional Amounts, as the case may be, as of the
Closing Date of not less than $10,000 in the case of the Registered
Certificates, $1,000,000 in the case of the Class X Certificates, and $250,000
in the case of Non-Registered Certificates (other than the Class R, Class X and
Class Y Certificates), and in each such case in integral multiples of $1 in
excess thereof. The Class Y and Class R Certificates shall be issuable in
minimum denominations representing Percentage Interests in the subject Class of
not less than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the officers or authorized signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein 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.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar (located as of the Closing Date at the
Corporate Trust Office), shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. The Trustee is
hereby initially appointed (and hereby agrees to act in accordance with the
terms hereof) as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Special Servicer and the Master Servicer, any other
bank or trust company to act as Certificate Registrar under such conditions as
the predecessor Certificate Registrar may prescribe; provided that the
predecessor Certificate Registrar shall not be
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relieved of any of its duties or responsibilities hereunder by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its duties as
Certificate Registrar. The Depositor, the Trustee (if it is no longer the
Certificate Registrar), 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. Upon
written request of any Certificateholder made for purposes of communicating with
other Certificateholders with respect to their rights under this Agreement,
together with a written copy of the communication to be sent to those other
Certificateholders, the Certificate Registrar shall promptly furnish such
requesting Certificateholder with a list of the other Certificateholders of
record identified in the Certificate Register at the time of the request.
(b) No transfer of any Non-Registered Certificate or any interest
therein shall be made unless that transfer is made pursuant to an effective
registration statement under the Securities Act, and effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial Transfer thereof by the
Depositor, the Initial Purchasers or their respective Affiliates or, as
contemplated by Section 5.03, any Transfer of a Global Certificate to a
successor Depository), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit G-1 hereto, and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached as either Exhibit G-2 hereto or (except in the case of the
Class R Certificates) as Exhibit G-3 hereto; or (ii) an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar to the effect that the
prospective Transferee is a Qualified Institutional Buyer or (except in the case
of a Class R Certificate) an Institutional Accredited Investor and that such
Transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
No beneficial interest in the Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is not a Qualified Institutional Buyer. If a Transfer of any interest in the
Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Book-Entry Non-Registered
Certificates or a Transfer of any interest therein by the Depositor, Xxxxxx
Brothers or any of their respective Affiliates), then the Certificate Owner
desiring to effect such Transfer shall be required to obtain either (i) a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached hereto as Exhibit G-4, or (ii) an Opinion of Counsel to the
effect that the prospective Transferee is a Qualified Institutional Buyer and
such Transfer may be made without registration under the Securities Act. If any
Transferee of an interest in the Rule 144A Global Certificate for any Class of
Book-Entry Non-Registered Certificates does not, in connection with the subject
Transfer, deliver to the Transferor the Opinion of Counsel or the certification
described in the preceding sentence, then such Transferee shall be deemed to
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have represented and warranted that all the certifications set forth in Exhibit
G-4 hereto are, with respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee, as transfer agent for the
Depository, to approve the debit of the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, and approve the
credit of the account of a Depository Participant by a denomination of interests
in such Regulation S Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred. Upon delivery to the Certificate Registrar and
the Trustee of such certifications and such orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Regulation S Global Certificate for such Class
of Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is a United States Securities Person. Any Certificate Owner desiring to effect
any Transfer of a beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be required to obtain
from such Certificate Owner's prospective Transferee a certificate substantially
in the form set forth in Exhibit G-5 hereto to the effect that such Transferee
is not a United States Securities Person. If any Transferee of an interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the certification described in the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit G-5 hereto are, with respect to the subject
Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph of this Section 5.02(b) and (ii) delivers or causes to be
delivered to the Certificate Registrar and the Trustee (A) a certificate from
such Certificate Owner confirming its ownership of the beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred,
(B) a copy of the certificate or Opinion of Counsel to be obtained by such
Certificate Owner from its prospective Transferee in accordance with the second
sentence of the third
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paragraph of this Section 5.02(b) and (C) such written orders and instructions
as are required under the applicable procedures of the Depository, Clearstream
and Euroclear to direct the Trustee to debit the account of a Depository
Participant by a denomination of interests in such Regulation S Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Trustee of such certification(s) and/or Opinion of Counsel and
such orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of the Depository, shall reduce the denomination of the
Regulation S Global Certificate in respect of the subject Class of Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
second paragraph of this Section 5.02(b) and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the second paragraph of this Section 5.02(b),
the Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with this Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Holder or Certificate Owner of a Non-Registered Certificate
desiring to effect such a Transfer shall, and upon acquisition of such a
Certificate or interest therein shall be deemed to have agreed to, indemnify the
Trustee, the Certificate Registrar, the Depositor and their respective
Affiliates against any liability that may result if the Transfer is not so
exempt from the registration and/or qualification requirements of the Securities
Act and any applicable state securities laws or is not made in accordance with
such federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan, if the
purchase and holding of such Certificate or interest therein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the
193
imposition of an excise tax under Section 4975 of the Code. Except in connection
with the initial issuance of the Non-Registered Certificates or the initial
Transfer of a Non-Registered Certificate or any interest therein by the
Depositor or any of its Affiliates or, as contemplated by Section 5.03, any
Transfer of a Global Certificate to a successor Depository, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee, and any
Certificate Owner transferring an interest in a Global Certificate for any Class
of Book-Entry Non-Registered Certificates shall be required to obtain from its
prospective Transferee, one of the following: (i) a certification to the effect
that such prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) alternatively, except in
the case of a Class Y or Class R Certificate, a certification to the effect that
the purchase and holding of such Certificate or interest therein by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by reason of
Sections I and III of Department of Labor Prohibited Transaction Class Exemption
95-60; or (iii) alternatively, but only in the case of a Non-Registered
Certificate that is an Investment Grade Certificate (other than, if applicable,
a Class Y or Class R Certificate) that is being acquired by or on behalf of a
Plan in reliance on the Exemption, a certification to the effect that such Plan
(X) is an accredited investor as defined in Rule 501(a)(1) of Regulation D of
the Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B)
of ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Exemption-Favored Party or
any Mortgagor with respect to Mortgage Loans constituting more than 5% of the
aggregate unamortized principal balance of all the Mortgage Loans determined as
of the Closing Date, or by any Affiliate of such Person, and (Z) agrees that it
will obtain from each of its Transferees that are Plans a written representation
that such Transferee satisfies the requirements of the immediately preceding
clauses (iii)(X) and (iii)(Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that are Plans a similar
written representation regarding satisfaction of the requirements of the
immediately preceding clauses (iii)(X) and (iii)(Y); or (iv) alternatively, a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. It is hereby acknowledged that the
forms of certification attached hereto as Exhibit H-1 (in the case of Definitive
Non-Registered Certificates) and Exhibit H-2 (in the case of ownership interests
in Book-Entry Non-Registered Certificates) are acceptable for purposes of the
preceding sentence. If any Transferee of a Certificate (including a Registered
Certificate) or any interest therein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar (in the case of a Definitive
Certificate) or the Transferor (in the case of ownership interests in a
Book-Entry Certificate) a certification and/or Opinion of Counsel as required by
the second preceding sentence, then such Transferee shall be deemed to have
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and holding of such Certificate or interest therein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause
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(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such sale. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and
shall promptly notify the Master Servicer, the Trustee and
the Certificate Registrar of any change or impending change
in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar
shall require delivery to it, and shall not register the
Transfer of any Class R Certificate until its receipt, of an
affidavit and agreement substantially in the form attached
hereto as Exhibit I-1 (a "Transfer Affidavit and
Agreement"), from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, and
upon which the Certificate Registrar may, in the absence of
actual knowledge by a Responsible Officer of either the
Trustee or the Certificate Registrar to the contrary,
conclusively rely, representing and warranting, among other
things, that such Transferee is a Permitted Transferee, that
it is not acquiring its Ownership Interest in the Class R
Certificate that is the subject of the proposed Transfer as
a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its
Ownership Interest in a Class R Certificate, it will
endeavor to remain a Permitted Transferee, that it has
historically paid its debts as they have come due, intends
to pay its debts as they come due in the future and intends
to pay all taxes associated with the Class R Certificate as
they come due, and that it has reviewed the provisions of
this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (i)(B)
above, if a Responsible Officer of the Certificate Registrar
has actual knowledge that the proposed Transferee is not a
Permitted Transferee, the Certificate Registrar shall not
register the Transfer of an Ownership Interest in the
subject Class R Certificate to such proposed Transferee. In
addition, if a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee
is an entity classified as a partnership under the Code, the
Certificate Registrar shall not register the transfer of the
subject Class R Certificate unless at the time of transfer,
the Certificate Registrar has actual knowledge that all of
the proposed Transferee's beneficial owners are United
States Tax Persons.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to Transfer its Ownership Interest
in such Class R Certificate and (2) not to
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Transfer its Ownership Interest in such Class R Certificate
unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as
Exhibit I-2 stating that, among other things, it has no
actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing an Ownership Interest in
such Certificate, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulations
section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it is, or is
holding an Ownership Interest in a Class R Certificate on
behalf of, a "pass-through interest holder."
(ii) (A) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the provisions of this Section 5.02(d),
then the last preceding Holder of such Class R Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof retroactive
to the date of registration of such Transfer of such Class R Certificate.
None of the Trustee, the Master Servicer or the Certificate Registrar shall
be under any liability to any Person for any registration of Transfer of a
Class R Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof or
for taking any other action with respect to such Holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class
R Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that the retroactive
restoration of the rights of the preceding Holder of such
Class R Certificate as described in clause (ii)(A) above
shall be invalid, illegal or unenforceable, the Trustee
shall have the right, without notice to the Holder or any
prior Holder of such Class R Certificate, to cause the
transfer of such Class R Certificate to a Permitted
Transferee on such terms as the Trustee may choose. Such
purported Transferee shall promptly endorse and deliver such
Class R Certificate in accordance with the instructions of
the Trustee. Such Permitted Transferee may be the Trustee
itself or any Affiliate of the Trustee. Any proceeds of such
sale, net of the commissions (which may include commissions
payable to the Certificate Registrar or its Affiliates),
expenses and taxes due, if any, will be remitted by the
Trustee to such purported Transferee. The terms and
conditions of any sale under this clause (ii)(B) shall be
determined in the sole discretion of the Trustee, and the
Trustee shall not be liable to any Person having an
Ownership Interest in a Class R Certificate as a result of
its exercise of such discretion.
(iii) The Tax Administrator shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions any
information available to it which is necessary to compute any tax imposed
as a result of the Transfer of an Ownership Interest in a Class R
Certificate to any Person who is a Disqualified Organization or agent
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thereof, including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of
such Class R Certificate, and the Trustee, the Master Servicer and the Special
Servicer shall furnish to the Tax Administrator all information in its
possession necessary for the Tax Administrator to discharge such obligation. The
Transferor of such Ownership Interest shall be responsible for the reasonable
compensation of the Tax Administrator, the Master Servicer and the Special
Servicer for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated; provided that there shall
have been delivered to the Trustee and the Master Servicer the following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current rating of any Class
of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee and the Master Servicer, obtained at the expense
of the party seeking such modification of, addition to or
elimination of such provisions (but in no event at the
expense of the Trust Fund), to the effect that doing so will
not cause any REMIC Pool to (1) cease to qualify as a REMIC
or (2) be subject to an entity-level tax caused by the
Transfer of any Class R Certificate to a Person which is not
a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee.
(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated Transferee or Transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(f) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest in such Class, upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
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(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
(k) Each Person who has or who acquires any Ownership Interest in a
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of the intercreditor,
co-lender and similar agreements, including the Co-Lender Agreements, affecting
such Certificate.
SECTION 5.03 Book-Entry Certificates.
(a) Each Class of Regular Certificates shall initially be issued as
one or more Certificates registered in the name of the Depository or its nominee
and, except as provided in Section 5.02(b) and in Section 5.03(c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(b) and in
Section 5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
The Class X, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates initially sold to Qualified
Institutional Buyers in reliance on Rule 144A or in reliance on another
exemption from the registration requirements of the Securities Act shall, in the
case of each such Class, be represented by the Rule 144A Global Certificate for
such Class, which shall be deposited with the Trustee as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Class X, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates initially sold in
offshore transactions in reliance on Regulation S shall, in the case of each
such Class, be represented by the Regulation S Global Certificate for such
Class, which shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures. Each Certificate Owner is deemed, by virtue
of its acquisition of an Ownership Interest in the applicable Class of
Book-Entry Certificates, to agree to comply with the transfer requirements
provided for in Section 5.02.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with
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respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor advises the Depository of its intent to
terminate the book-entry system through the Depository with respect to a Class
of Book-Entry Certificates and (in the event applicable law and/or the
Depository's procedures require that the Depository Participants holding
Ownership Interests in such Class of Book-Entry Certificates submit a withdrawal
request to the Depository in order to so terminate the book-entry system) the
Depositor additionally notifies those Depository Participants and those
Depository Participants submit a withdrawal request with respect to such
termination, then the Certificate Registrar shall notify all affected
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to such Certificate Owners
requesting the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither the
Trustee nor the Certificate Registrar shall have any responsibility whatsoever
to monitor or restrict the transfer of ownership interests in any Certificate
(including but not limited to any Non-Registered Certificate) which interests
are transferable through the book-entry facilities of the Depository.
SECTION 5.04 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 Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee and the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen
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Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this section, the Trustee and 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 Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar and any agent of any of them may treat the Person in whose name any
Certificate is registered as of the related Record Date as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and may treat the person whose name each Certificate is registered as of the
date of determination as the owner of such Certificate for all other purposes
whatsoever and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master Servicer
and the Special Servicer shall each keep in full effect its existence, rights
and franchises as a corporation, national banking association or other legal
entity, under the laws of the jurisdiction of its incorporation or organization,
and each will obtain and preserve its qualification to do business as a foreign
corporation, national banking association or other foreign legal entity, in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Serviced Loans and to perform its respective duties under this Agreement, and
the Master Servicer shall keep in full effect its existence and rights as a
national banking association under the laws of the United States.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which, in the case of the
Master Servicer or the Special Servicer, may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business (which, in the case of the Master Servicer or
the Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, 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; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as evidenced in writing by the Rating Agencies, such
succession will not result in qualification, downgrading or withdrawal of the
ratings then assigned by the Rating Agencies to any Class of Certificates and
(ii) such successor or surviving Person makes the applicable representations and
warranties set forth in Section 3.23.
SECTION 6.03 Limitation on Liability of Depositor, Master Servicer and
Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer, or
any director, officer, employee or agent of any of them, shall be under any
liability to the Trust Fund, the Trustee, the Certificateholders or, with
respect to any Loan Combination, the related Non-Trust Loan Noteholder(s) for
any action taken, or not taken, in good faith pursuant to this Agreement
(including any action taken, or not taken, in good faith pursuant to any
Co-Lender Agreement as required pursuant to the terms of
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this Agreement), or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee, the
Certificateholders or, with respect to any Loan Combination, the related
Non-Trust Loan Noteholder(s) for the breach of a representation or warranty made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
misfeasance, bad faith or negligence in the performance of, or negligent
disregard of, obligations or duties hereunder. The Depositor, the Master
Servicer, the Special Servicer and any director, officer, employee or agent 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 Person respecting any matters arising hereunder. The Depositor,
the Master Servicer, the Special Servicer and any director, member, manager,
officer, employee or agent of the Depositor, the Master Servicer or the Special
Servicer shall be indemnified and held harmless by the Trust Fund against any
loss, liability or reasonable expense incurred in connection with this Agreement
or the Certificates (including, without limitation, the distribution or posting
of reports or other information as contemplated by this Agreement), other than
Advances (the reimbursement of which is otherwise provided for hereunder) and
other than any loss, liability or expense: (i) specifically required to be borne
by such party without right of reimbursement pursuant to the terms hereof; (ii)
that constitutes (A) amounts payable as compensation to any Sub-Servicer
retained by the Master Servicer or the Special Servicer or (B) expenses
described in the last sentence of the definition of Servicing Advances; (iii)
incurred in connection with any breach of a representation, warranty or covenant
made by such Person herein; or (iv) incurred by reason of such Person's willful
misfeasance, bad faith or negligence in the performance of, or negligent
disregard of, obligations or duties hereunder; provided, however, that if and to
the extent that any Loan Combination and/or a related Non-Trust Loan Noteholder
is involved, such expenses, costs and liabilities shall be payable out of the
related Loan Combination Custodial Account pursuant to Section 3.05(e) and, if
not solely attributable to a Non-Trust Loan (or any successor REO Non-Trust Loan
with respect thereto), shall also be payable out of the Collection Account as
and to the extent permitted by Section 3.05(a); and provided, further, that in
making a determination as to whether any such indemnity is solely attributable
to a Non-Trust Loan (or any successor REO Loan with respect thereto), the fact
that any legal action was instituted by such Non-Trust Loan Noteholder shall not
create a presumption that such indemnity is solely attributable thereto. 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, unless it is
specifically required hereunder to bear the costs of such legal action, in its
opinion does not involve it in any ultimate expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of 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, and the Depositor, the Master Servicer and the Special Servicer shall be
entitled to be reimbursed therefor from the Collection Account as provided in
Section 3.05(a); provided, however, that if and to the extent that any Loan
Combination and/or a related Non-Trust Loan Noteholder is involved, such
expenses and costs (to the extent reasonable and customary), and such
liabilities shall be payable out of the related Loan Combination Custodial
Account pursuant to Section 3.05(e) and, if not solely attributable to a
Non-Trust Loan (or any successor REO Non-Trust Loan with respect thereto), shall
also be payable out of the Collection Account as and to the extent permitted by
Section 3.05(a). In no event shall the Master Servicer or the Special Servicer
be liable or responsible for any action taken or omitted to be taken by
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the other of them or by the Depositor, the Trustee or any Certificateholder,
subject to the provisions of Section 8.05(b).
SECTION 6.04 Resignation of Master Servicer and the Special Servicer.
The Master Servicer and, subject to Section 6.09, the Special Servicer
may each resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and the Special
Servicer shall each have the right to resign at any other time; provided that
(i) a willing successor thereto has been found by the Master Servicer or Special
Servicer, as applicable, (ii) each of the Rating Agencies confirms in writing
that the successor's appointment will not result in a withdrawal, qualification
or downgrade of any rating or ratings assigned to any Class of Certificates,
(iii) the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts such appointment, and assumes the
responsibilities and obligations of the resigning party hereunder, prior to the
effectiveness of such resignation. Neither the Master Servicer nor the Special
Servicer shall be permitted to resign except as contemplated above in this
Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee or the Special
Servicing Fee, as the case may be, that accrues pursuant hereto from and after
the date of such transfer shall be payable to such successor.
SECTION 6.05 Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such information
constitutes proprietary information or is subject to a privilege under
applicable law. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and the Special Servicer hereunder and may,
but is not obligated to,
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perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer or Special Servicer hereunder or exercise the rights of the Master
Servicer and the Special Servicer hereunder; and provided, however, that neither
the Master Servicer nor the Special Servicer shall be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall each
furnish such reports, certifications and information as are reasonably requested
by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07 Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each furnish
such reports, certifications and information as are reasonably requested by the
Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08 Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each furnish
such reports, certifications and information as are reasonably requested by the
Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09 Designation of Special Servicer by the Controlling Class
Certificateholders and Others.
(a) Subject to the terms of this section, the Holder or Holders of the
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class may at any time and from time to time designate a Person
meeting the requirements set forth in Section 6.04 (including, without
limitation, Rating Agency confirmation) to serve as Special Servicer hereunder
and to replace any existing Special Servicer without cause or any Special
Servicer that has resigned or otherwise ceased to serve in such capacity;
provided that such Holder or Holders shall pay all costs related to the transfer
of servicing if the Special Servicer is replaced other than due to an Event of
Default; and provided, further, that the Holder or Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
may not terminate or replace any ShopKo Portfolio Special Servicer appointed by
the ShopKo Portfolio Controlling Non-Trust Loan Noteholders in accordance with
Section 6.09(b). Such Holder or Holders shall so designate a Person to serve as
replacement Special Servicer by the delivery to the Trustee, the Master
Servicer, each Non-Trust Loan Noteholder and the existing Special Servicer of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, deliver to the Rating Agencies (and any other rating
agencies that may be rating any Non-Trust Loan Securities) an executed Notice
and Acknowledgment in the form attached hereto as Exhibit J-1. If such Holders
have not replaced a Special Servicer within 30 days of such Special Servicer's
resignation or the date such Special Servicer has ceased to serve in such
capacity, and subject to the prior rights of the
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ShopKo Portfolio Controlling Non-Trust Loan Noteholders to appoint a ShopKo
Portfolio Special Servicer in accordance with Section 6.09(b), the Trustee shall
designate a successor Special Servicer, subject to removal by the Holder or
Holders of Certificates evidencing a majority of the Voting Rights allocated to
the Controlling Class or as and to the extent otherwise so provided in Section
6.09(b), and appointment of a successor thereto pursuant to the terms of this
Section 6.09. Subject to the provisos to the first sentence of this Section
6.09(a), any Person designated pursuant to this Section 6.09(a), whether
designated by Holders of the Controlling Class or by the Trustee, shall become
the Special Servicer, subject to satisfaction of the other conditions set forth
below, on the date that the Trustee shall have received written confirmation
from all of the Rating Agencies (and any other rating agencies that may be
rating any Non-Trust Loan Securities) that the appointment of such Person will
not result in the qualification, downgrading or withdrawal of the rating or
ratings assigned to one or more Classes of the Certificates (or, if applicable,
one or more classes of Non-Trust Loan Securities); provided that such
confirmation need not be obtained from Fitch if the designated Person is rated
at least "CSS2" by Fitch as a special servicer. The appointment of such
designated Person as Special Servicer shall also be subject to receipt by the
Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit J-2, executed by the designated Person, and (2) an
Opinion of Counsel (at the expense of the Person designated to become the
Special Servicer) to the effect that the designation of such Person to serve as
Special Servicer is in compliance with this Section 6.09 and all other
applicable provisions of this Agreement, that upon the execution and delivery of
the Acknowledgment of Proposed Special Servicer the designated Person shall be
bound by the terms of this Agreement and, subject to customary limitations, that
this Agreement shall be enforceable against the designated Person in accordance
with its terms. Subject to the provisos to the first sentence of this Section
6.09(a), any existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that the resigning Special Servicer shall continue
to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation (including
Workout Fees earned on Specially Serviced Loans which became Corrected Loans
prior to its resignation or are otherwise payable to the terminated or resigning
Special Servicer pursuant to Section 3.11(c)), and it shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such resignation.
Such resigning 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 (2) Business Days to the replacement Special
Servicer for administration by it of all cash amounts that shall at the time be
or should have been credited by the Special Servicer to the Collection Account,
a Loan Combination Custodial Account, a Servicing Account, a Reserve Account or
an REO Account or delivered to the Master Servicer or that are thereafter
received with respect to Specially Serviced Loans and REO Properties.
Notwithstanding the foregoing, if the Controlling Class of
Certificates consists of Book-Entry Certificates, then the rights of the Holders
of the Controlling Class of Certificates set forth above in this Section 6.09
may be exercised directly by the relevant Certificate Owner(s); provided that
the identity of such Certificate Owner(s) has been confirmed to the Trustee to
its reasonable satisfaction.
(b) The ShopKo Portfolio Controlling Non-Trust Loan Noteholders may,
in accordance with Section 3.02 of the ShopKo Portfolio Co-Lender Agreement,
upon at least ten (10) Business Days' prior notice to the Special Servicer, the
Master Servicer and the Trustee, with or without cause, terminate the rights and
obligations of the Special Servicer hereunder solely with respect to the ShopKo
Portfolio Loan Combination or related REO Property and designate a Person to
serve as ShopKo Portfolio Special Servicer hereunder; provided that the ShopKo
Portfolio Controlling Non-
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Trust Loan Noteholders shall pay all reasonable and customary costs and expenses
related thereto. The ShopKo Portfolio Controlling Non-Trust Loan Noteholders
shall so designate a Person to serve as replacement ShopKo Portfolio Special
Servicer by the delivery to the Trustee, the Master Servicer and the existing
ShopKo Portfolio Special Servicer of a written notice stating such designation.
The Trustee shall, promptly after receiving any such notice, deliver to the
Rating Agencies (and any other rating agencies rating Non-Trust Loan Securities
backed by a ShopKo Portfolio Non-Trust Loan or any successor REO Non-Trust Loan
with respect thereto) an executed Notice and Acknowledgment in the form attached
hereto as Exhibit J-1. If the ShopKo Portfolio Controlling Non-Trust Loan
Noteholders have not designated a replacement ShopKo Portfolio Special Servicer
within 30 days of the predecessor ShopKo Portfolio Special Servicer having been
terminated by the ShopKo Portfolio Controlling Non-Trust Loan Noteholders, then
the Holder or Holders of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class or the Trustee shall designate a successor
ShopKo Portfolio Special Servicer in accordance with Section 6.09(a), subject to
removal in accordance with this Section 6.09. Any Person designated by the
ShopKo Portfolio Controlling Non-Trust Loan Noteholders to act as a ShopKo
Portfolio Special Servicer shall become the ShopKo Portfolio Special Servicer on
the date as of which the Trustee shall have received all of the following and
any additional conditions set forth in the ShopKo Portfolio Co-Lender Agreement
have been satisfied: (1) written confirmation from all of the Rating Agencies
(and any other rating agencies rating Non-Trust Loan Securities backed by a
ShopKo Portfolio Non-Trust Loan or any successor REO Non-Trust Loan with respect
thereto) that the appointment of such Person will not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates or one or more classes of Non-Trust Loan
Securities backed by a ShopKo Portfolio Non-Trust Loan or any successor REO
Non-Trust Loan with respect thereto; (2) an Acknowledgment of Proposed Special
Servicer in the form attached hereto as Exhibit J-2 (modified to specifically
relate to the ShopKo Portfolio Loan Combination or any related REO Property),
executed by the designated Person; and (3) an Opinion of Counsel (at the expense
of the Person designated to become the ShopKo Portfolio Special Servicer) to the
effect that the designation of such Person as ShopKo Portfolio Special Servicer
is in compliance with this Section 6.09(b) and all other applicable provisions
of this Agreement and the ShopKo Portfolio Co-Lender Agreement, that, upon the
execution and delivery of the Acknowledgment of Proposed ShopKo Portfolio
Special Servicer, the designated Person shall be bound by the terms of this
Agreement and, subject to customary limitations, that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing ShopKo Portfolio Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the ShopKo Portfolio
Special Servicer hereunder; provided, however, that (i) the resigning ShopKo
Portfolio Special Servicer shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the effective date of
such resignation, whether in respect of Servicing Advances or otherwise, and
(ii) the resigning ShopKo Portfolio Special Servicer shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such resignation.
The outgoing ShopKo Portfolio Special Servicer shall cooperate with the Trustee
and the replacement ShopKo Portfolio Special Servicer in effecting the
termination of the outgoing ShopKo Portfolio Special Servicer's responsibilities
and rights hereunder, including, without limitation, the transfer within two (2)
Business Days to the replacement ShopKo Portfolio Special Servicer for
administration by it of all cash amounts relating to the ShopKo Portfolio Loan
Combination or any related REO Property that shall at the time be or should have
been credited by the ShopKo Portfolio Special Servicer to the Collection
Account, the related Loan Combination Custodial Account, a Servicing Account, a
Reserve Account or an REO Account or should have been delivered to the Master
Servicer or that are thereafter received with respect to the ShopKo Portfolio
Loan Combination and/or any related REO Property. The Trustee shall notify the
other parties hereto and the Certificateholders of any termination of the ShopKo
Portfolio Special Servicer and appointment of a
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new ShopKo Portfolio Special Servicer in accordance with this Section 6.09(b).
Notwithstanding anything herein to the contrary, the ShopKo Portfolio Non-Trust
Loan Noteholders shall not have any right to terminate, replace or appoint any
party as Special Servicer in respect of any Mortgage Loan or REO Property other
than the ShopKo Portfolio Loan Combination or any related REO Property.
(c) As and to the extent provided in Section 3.02(d) of the related
Co-Lender Agreement, the ShopKo Portfolio Non-Trust Loan Noteholders may each
designate a representative to exercise its rights under Section 6.09(b).
(d) If a replacement special servicer is appointed with respect to the
ShopKo Portfolio Loan Combination or any related REO Property in accordance with
Section 6.09(b) or 7.02(c) such that there are multiple parties acting as
Special Servicer hereunder, then, unless the context clearly requires otherwise:
(i) when used in the context of imposing duties and obligations on the Special
Servicer hereunder or the performance of such duties and obligations, the term
"Special Servicer" shall mean the ShopKo Portfolio Special Servicer, insofar as
such duties and obligations relate to the ShopKo Portfolio Loan Combination or
any related REO Property, and shall mean the General Special Servicer (as
defined below), in all other cases (provided that, in Section 3.13, Section 3.14
and Section 3.15, the term "Special Servicer" shall mean each of the ShopKo
Portfolio Special Servicer and the General Special Servicer); (ii) when used in
the context of identifying the recipient of any information, funds, documents,
instruments and/or other items, the term "Special Servicer" shall mean the
ShopKo Portfolio Special Servicer, insofar as such information, funds,
documents, instruments and/or other items relate to the ShopKo Portfolio Loan
Combination or any related REO Property, and shall mean the General Special
Servicer, in all other cases; (iii) when used in the context of granting the
Special Servicer the right to purchase Defaulted Mortgage Loans pursuant to
Section 3.18, the term "Special Servicer" shall mean the General Special
Servicer only; (iv) when used in the context of granting the Special Servicer
the right to purchase all of the Mortgage Loans and any REO Properties remaining
in the Trust Fund pursuant to Section 9.01, the term "Special Servicer" shall
mean the General Special Servicer only; (v) when used in the context of the
Special Servicer being replaced, pursuant to Section 6.09(a), by the Holder or
Holders of a majority of the Voting Rights allocated to the Controlling Class,
the term "Special Servicer" shall mean the General Special Servicer or the
ShopKo Portfolio Special Servicer, as applicable (provided that the Holder or
Holders of a majority of the Voting Rights allocated to the Controlling Class
may not, in accordance with Section 6.09(a), terminate or replace any ShopKo
Portfolio Special Servicer with respect to the ShopKo Portfolio Loan Combination
or any related REO Property that was appointed by the ShopKo Portfolio
Controlling Non-Trust Loan Noteholders in accordance with Section 6.09(b)); (vi)
when used in the context of granting the Special Servicer any protections,
limitations on liability, immunities and/or indemnities hereunder, the term
"Special Servicer" shall mean each of the ShopKo Portfolio Special Servicer and
the General Special Servicer; and (vii) when used in the context of requiring
indemnification from, imposing liability on, or exercising any remedies against,
the Special Servicer for any breach of a representation, warranty or covenant
hereunder or for any negligence, bad faith or willful misconduct in the
performance of duties and obligations hereunder or any negligent disregard of
such duties and obligations or otherwise holding the Special Servicer
responsible for any of the foregoing, the term "Special Servicer" shall mean the
ShopKo Portfolio Special Servicer or the General Special Servicer, as
applicable.
References in this Section 6.09(d) to "General Special Servicer" means
the Person performing the duties and obligations of special servicer with
respect to the Mortgage Pool (exclusive of the ShopKo Portfolio Loan Combination
or any related REO Property, if a different ShopKo Portfolio Special Servicer
has been appointed with respect thereto).
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SECTION 6.10 Master Servicer or Special Servicer as Owner 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
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as set forth in the definition of
"Certificateholder") 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 of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that 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, but that, if taken, might
nonetheless, in the Master Servicer's or the Special Servicer's reasonable, good
faith judgment, be considered by other Persons to violate the Servicing
Standard, then 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 (a) states that it is delivered pursuant to this
Section 6.10, (b) 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 (c)
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 greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have failed to object 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 within 30 days,
such action shall be deemed to comply with, but not modify, the Servicing
Standard. The Trustee shall be entitled to reimbursement from the Master
Servicer or the Special Servicer, as applicable, for 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, but rather in the case of unusual
circumstances.
SECTION 6.11 The Controlling Class Representative.
(a) Subject to Section 6.12 of this Agreement and the terms of the
ShopKo Portfolio Co-Lender Agreement, in the case of the ShopKo Portfolio Loan
Combination or any related REO Property, the Controlling Class Representative
will be entitled to advise the Special Servicer with respect to the following
actions of the Special Servicer, and notwithstanding anything herein to the
contrary except as necessary or advisable to avoid an Adverse REMIC Event or the
violation of the Servicing Standard and except as set forth in, and in any event
subject to, the second paragraph of this Section 6.11(a), the Special Servicer
will not be permitted to take any of the following actions as to which the
Controlling Class Representative has objected in writing within ten (10)
Business Days of being notified thereof and having received the information
reasonably necessary to make an informed decision with respect thereto, which
notification with respect to the action described in clause (vi) below shall be
copied by the Special Servicer to the Master Servicer (provided that, if such
written objection has not been received by the Special Servicer within such ten
(10) Business Day period, then the Controlling Class Representative's approval
will be deemed to have been given):
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(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of properties
securing such of the Specially Serviced Mortgage Loans as come into and
continue in default;
(ii) any modification of a Money Term (other than late payment
charge and Default Interest provisions) of a Mortgage Loan, but excluding a
modification consisting of the extension of the maturity date of a Mortgage
Loan for one year or less;
(iii) any proposed sale of an REO Property (other than in
connection with the termination of the Trust Fund) for less than the
related Purchase Price;
(iv) any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address Hazardous
Materials located at an REO Property;
(v) any release of collateral, or acceptance of substitute or
additional collateral, for a Mortgage Loan unless required by the related
Mortgage Loan documents and/or applicable law;
(vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance"
clause; and
(vii) any acceptance of an assumption agreement releasing a
Mortgagor from liability under a Mortgage Loan (other than in connection
with a defeasance permitted under the terms of the applicable Mortgage Loan
Documents);
provided that the foregoing rights of the Controlling Class Representative shall
not relate to the ShopKo Portfolio Mortgage Loan or any related REO Property,
regarding which rights and powers of the specified Persons set forth under
Section 6.12 are instead applicable.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions (other
than with respect to the ShopKo Portfolio Loan Combination or any related REO
Property) as the Controlling Class Representative may deem advisable or as to
which provision is otherwise made in this Agreement; provided that,
notwithstanding anything herein to the contrary no such direction, and no
objection contemplated by the preceding paragraph or Section 3.19(e), may (and
the Master Servicer or Special Servicer, as applicable, shall disregard any such
direction or objection that would) require or cause the Master Servicer or
Special Servicer to violate any applicable law, any provision of this Agreement
or any Mortgage Loan or the REMIC Provisions, including without limitation the
Master Servicer's or Special Servicer's obligation to act in accordance with the
Servicing Standard, or expose the Master Servicer, the Special Servicer, the
Trust Fund or the Trustee or their respective Affiliates, officers, directors,
employees or agents to any claim, suit or liability, or materially expand the
scope of the Master Servicer's or the Special Servicer's responsibilities
hereunder or cause the Master Servicer or the Special Servicer to act, or fail
to act, in a manner which in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, is not in the best interests of the
Certificateholders. For the avoidance of doubt, the Master Servicer and/or the
Special Servicer shall disregard any direction or objection of any party
(including, without limitation, of the Controlling Class Representative) if such
direction and/or objection causes the Master Servicer or the Special Servicer to
violate the Servicing Standard, any applicable law, any provision of this
Agreement or any Mortgage Loan or the REMIC Provisions or expose the Master
Servicer, the
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Special Servicer, the Trust Fund or the Trustee or their respective Affiliates,
officers, directors, employees or agents to any claim, suit or liability, or
materially expand the scope of the Master Servicer's or Special Servicer's
responsibility hereunder or cause the Master Servicer or the Special Servicer to
act, or fail to act, in a manner which in the reasonable judgment of the Master
Servicer or the Special Servicer is not in the best interest of the
Certificateholders or is inconsistent with the Servicing Standard.
(b) The Controlling Class Representative is hereby authorized to
exercise the rights and powers of the holder of the Mortgage Note for the ShopKo
Portfolio Mortgage Loan, under Sections 3.02 and 4.03 of the ShopKo Portfolio
Co-Lender Agreement (and any corresponding provisions hereof), including for
purposes of exercising, together with the ShopKo Portfolio Non-Trust Loan
Noteholders, consent rights, consultation rights and rights to direct servicing
of the ShopKo Portfolio Loan Combination. Promptly following the initial such
appointment of a Controlling Class Representative and any subsequent such
appointment of a successor Controlling Class Representative, the Trustee shall
inform the ShopKo Portfolio Non-Trust Loan Noteholders (and from time to time
shall ensure that such parties remain similarly informed) that the Controlling
Class Representative is entitled, to the full extent permitted under the related
Co-Lender Agreement, to exercise such rights and powers of the holder of the
Mortgage Note for the ShopKo Portfolio Mortgage Loan, under Sections 3.02 and
4.03 of the related Co-Lender Agreement (and any corresponding provisions
hereof), and, further, the Trustee shall take such other actions as may be
required under the related Co-Lender Agreement in order to permit the
Controlling Class Representative to exercise such rights and powers. The
Controlling Class Representative shall be subject to the same limitations,
constraints and restrictions in exercising such rights and powers as would be
applicable to the Trustee, in its capacity as holder of the Mortgage Note for
the ShopKo Portfolio Mortgage Loan.
(c) The Controlling Class Representative will not have any liability
to the Certificateholders 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 the Controlling Class Representative will not
be protected against any liability which 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
Controlling Class Representative may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Controlling Class Representative may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that the Controlling Class Representative may act solely in the
interests of the Holders of the Controlling Class of Certificates, that the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class of Certificates, that the
Controlling Class Representative will 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 the interests of the Holders of the
Controlling Class of Certificates, and that the Controlling Class Representative
will not have any liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Controlling Class
Representative or any director, officer, employee, agent or principal thereof
for having so acted.
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SECTION 6.12 Certain Matters Regarding the ShopKo Portfolio Loan
Combination
(a) The Master Servicer and Special Servicer shall each be required to
notify each ShopKo Portfolio Non-Trust Loan Noteholder and the Controlling Class
Representative in writing of its intention to take any of the ShopKo Portfolio
Major Actions with respect to the ShopKo Portfolio Loan Combination or any
related REO Property and to provide each such party with all reasonably
requested information with respect thereto. Subject to Section 3.01 and Section
3.02(b) of the ShopKo Portfolio Co-Lender Agreement and Section 6.12(b) hereof,
the ShopKo Portfolio Directing Lender will be entitled to advise each of the
Master Servicer and the Special Servicer with respect to any ShopKo Portfolio
Major Action to be taken thereby; and, further subject to Section 3.02(b) of the
ShopKo Portfolio Co-Lender Agreement and Section 6.12(b) hereof, neither the
Master Servicer nor the Special Servicer shall take (or, in the case of the
Special Servicer, if and when appropriate hereunder, consent to the Master
Servicer's taking) any of the ShopKo Portfolio Major Actions, if the ShopKo
Portfolio Directing Lender has objected in writing within the applicable ShopKo
Portfolio Consent Period following each ShopKo Portfolio Non-Trust Loan
Noteholder and the Controlling Class Representative having been notified in
writing of the subject action and having been provided with all reasonably
requested information with respect thereto (it being understood and agreed that
if such written objection has not been received by the Master Servicer or
Special Servicer, as applicable, within such ShopKo Portfolio Consent Period,
then the ShopKo Portfolio Directing Lender will be deemed to have approved of
the subject action); provided that, in the event that the Master Servicer or the
Special Servicer, as applicable, determines that immediate action is necessary
to protect the interests of the Lenders (as a collective whole), the Master
Servicer or the Special Servicer, as the case may be, may take (or, in the case
of the Special Servicer, if and when appropriate hereunder, may consent to the
Master Servicer's taking) any such action without waiting for the ShopKo
Portfolio Directing Lender's response.
If the ShopKo Portfolio Majority Lenders (or their designees) have not
executed a mutual written consent to a course of action that satisfies Section
3.01(b), Section 3.01(c) and Section 3.02(b) of the ShopKo Portfolio Co-Lender
Agreement with respect to any particular ShopKo Portfolio Major Action within
the applicable ShopKo Portfolio Consent Period (or such shorter period as may be
required by the related loan documents to the extent the lender's approval is
required) of the ShopKo Portfolio Non-Trust Loan Noteholders and the Controlling
Class Representative having been notified of the proposed action or inaction and
having been provided with all reasonably requested information with respect
thereto, then the Master Servicer (with the consent of the Special Servicer if
required hereunder) or the Special Servicer, as applicable, shall implement such
servicing action or inaction (subject to Section 3.01(c) and Section 3.02(b) of
the ShopKo Portfolio Co-Lender Agreement and Section 6.12(b) hereof) that it
deems to be in accordance with the Servicing Standard.
In addition, subject to Section 3.01(b), Section 3.01(c) and Section
3.02(b) of the ShopKo Portfolio Co-Lender Agreement and Section 6.12(b) hereof,
upon notice to the ShopKo Portfolio Non-Trust Loan Noteholders and the
Controlling Class Representative, the ShopKo Portfolio Majority Lenders may
direct each of the Master Servicer and the Special Servicer to take, or to
refrain from taking, such actions as the ShopKo Portfolio Majority Lenders may
deem consistent with the ShopKo Portfolio Co-Lender Agreement or as to which
provision is otherwise made therein. Each of the Master Servicer and the Special
Servicer shall be required to provide the ShopKo Portfolio Majority Lenders,
upon reasonable request, with any information in such servicer's possession with
respect to such matters, including, without limitation, its reasons for
determining to take a proposed action.
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(b) Notwithstanding anything herein to the contrary, consistent with
Section 3.02(b) of the ShopKo Portfolio Co-Lender Agreement, the Master Servicer
and the Special Servicer shall each ignore and act without regard to any advice,
direction or objection from or by the ShopKo Portfolio Directing Lender that
such servicer has determined, in its reasonable, good faith judgment, will
require, cause or permit such servicer to violate any provision of this
Agreement or the ShopKo Portfolio Co-Lender Agreement (including such servicer's
obligation to act in accordance with the Servicing Standard), the related loan
documents or applicable law or result in an Adverse REMIC Event (within the
meaning of the ShopKo Portfolio Co-Lender Agreement) or an Adverse Grantor Trust
Event (within the meaning of the ShopKo Portfolio Co-Lender Agreement).
Furthermore, neither the Master Servicer nor the Special Servicer shall be
obligated to seek approval from the ShopKo Portfolio Directing Lender for any
actions to be taken by such servicer with respect to the workout or liquidation
of the ShopKo Portfolio Loan Combination if:
(i) such servicer has, as provided in Section 3.02(a), notified
the ShopKo Portfolio Non-Trust Noteholders and the Controlling Class
Representative in writing of various actions that such servicer proposes to
take with respect to the workout or liquidation of the ShopKo Portfolio
Loan Combination; and
(ii) for 60 days following the first such notice, the ShopKo
Portfolio Directing Lender has objected to all of those proposed actions
and has failed to suggest any alternative actions that such servicer
considers to be consistent with the Servicing Standard.
(c) With respect to the rights and powers of the ShopKo Portfolio
Directing Lender, each Non-Trust Loan Noteholder may designate, in writing, a
representative, including itself, to exercise its rights and powers under
Section 3.02 of the ShopKo Portfolio Co-Lender Agreement of, or otherwise under,
the ShopKo Portfolio Co-Lender Agreement and this Agreement, in accordance with
Section 3.02(d) of the ShopKo Portfolio Co-Lender Agreement.
(d) Each of the Master Servicer and the Special Servicer, prior to
such servicer's taking (or, in the case of the Special Servicer, if and when
appropriate hereunder, consenting to the Master Servicer's taking) any of the
ShopKo Portfolio Major Actions, to notify each of the ShopKo Portfolio Non-Trust
Loan Noteholders not otherwise acting as the ShopKo Portfolio Directing Lender).
Such ShopKo Portfolio Non-Trust Loan Noteholders shall, upon receipt of such
notice, have ten (10) Business Days to advise and consult with the Master
Servicer or the Special Servicer, as applicable, with respect to such actions
under the circumstances and subject to the conditions set forth in Section
3.02(e) of the ShopKo Portfolio Co-Lender Agreement; provided that the Master
Servicer or the Special Servicer, as applicable, shall not be obligated to take
any advice from, or follow any direction given by, any such ShopKo Portfolio
Non-Trust Loan Noteholder; and provided, further, that, in the event that the
Master Servicer or the Special Servicer, as applicable, subject to the Servicing
Standard, determines that immediate action is necessary to protect the interests
of the Certificateholders and the ShopKo Portfolio Non-Trust Loan Noteholders
(as a collective whole), such servicer may take (or, in the case of the Special
Servicer, if and when appropriate hereunder, may consent to the Master
Servicer's taking) the subject action without consulting with, or providing any
information to, any ShopKo Portfolio Non-Trust Loan Noteholder in accordance
with this Section 6.12(d). The Master Servicer or the Special Servicer, as
applicable, within two (2) Business Days of receiving any request from any
ShopKo Portfolio Non-Trust Loan Noteholder desiring to exercise its consultation
rights under Section 3.02(e) of the ShopKo Portfolio Co-Lender Agreement and
this Section 6.12(d) (subject to Section 3.02(e) of the ShopKo Portfolio
Co-Lender Agreement and the two (2) provisos to the immediately preceding
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sentence), to: (i) make available to such requesting ShopKo Portfolio Non-Trust
Loan Noteholder, in person at the Primary Servicing Office of such servicer or
by telephone conference, for a reasonable time period, one or more of such
servicer's officers responsible for the servicing and administration of the
ShopKo Portfolio Loan Combination or any related REO Property; (ii) provide to
the requesting ShopKo Portfolio Non-Trust Loan Noteholder such information
regarding the proposed action that is in such servicer's possession or easily
obtainable by it, including such servicer's reasons for determining to take or
permit a proposed action, as such ShopKo Portfolio Non-Trust Loan Noteholder may
reasonably request; and (iii) communicate with the ShopKo Portfolio Directing
Lender regarding any advice or other views expressed by such requesting ShopKo
Portfolio Non-Trust Loan Noteholder regarding the subject servicing action(s).
Any ShopKo Portfolio Non-Trust Noteholder may designate, in writing, a
representative to exercise its rights under Section 3.02(e) of the ShopKo
Portfolio Co-Lender Agreement and the prior paragraph in accordance with Section
3.02(e) of the ShopKo Portfolio Co-Lender Agreement.
(e) The liability of any party exercising the rights of the ShopKo
Portfolio Directing Lender to the respective holders of the Mortgage Notes for
the ShopKo Portfolio Loan Combination shall be limited as set forth in Section
3.02(c) of the ShopKo Portfolio Co-Lender Agreement.
(f) Each ShopKo Portfolio Non-Trust Loan Noteholder shall be entitled
to receive any and all reports, statements, documents and other information
required to be delivered by any party hereto to the Controlling Class
Representative, but only to the extent that such reports, statements, documents
and other information relate to the ShopKo Portfolio Loan Combination or any
related REO Property. In addition, the Special Servicer, if the ShopKo Portfolio
Mortgage Loan is a Specially Serviced Loan or has become an REO Loan, or
otherwise the Master Servicer shall timely deliver to each ShopKo Portfolio
Non-Trust Loan Noteholder all reports, statements, documents and other
information required to be delivered thereto by the holder of the ShopKo
Portfolio Mortgage Loan or contemplated to be delivered thereto by a servicer
pursuant to the ShopKo Portfolio Co-Lender Agreement.
(g) The parties hereto recognize and acknowledge the rights of each
ShopKo Portfolio Non-Trust Loan Noteholder under the ShopKo Portfolio Co-Lender
Agreement, including the right to purchase the ShopKo Portfolio Mortgage Loan
under the circumstances contemplated by Section 4.03 of the ShopKo Portfolio
Co-Lender Agreement. In connection with the foregoing, the Special Servicer (if
the ShopKo Portfolio Mortgage Loan is a Specially Serviced Loan) or the Master
Servicer (otherwise), as applicable, shall take all actions required on the part
of the holder of the ShopKo Portfolio Mortgage Loan or contemplated to be
performed by a servicer, in any case under Section 4.03 of the ShopKo Portfolio
Co-Lender Agreement, including the delivery of all necessary notices on a timely
basis and the calculation of the applicable purchase price(s), as well as all
other actions necessary and appropriate to effect the transfer of the ShopKo
Portfolio Mortgage Loan (in connection with the purchase thereof under the
ShopKo Portfolio Co-Lender Agreement) to the applicable ShopKo Portfolio
Non-Trust Loan Noteholder(s), if applicable, and/or to permit the appropriate
parties to exercise the purchase options contemplated by Section 4.03 of the
ShopKo Portfolio Co-Lender Agreement.
(h) The Special Servicer (if the ShopKo Portfolio Mortgage Loan is a
Specially Serviced Loan or has become an REO Loan) or the Master Servicer
(otherwise), as applicable, shall take all actions relating to the servicing
and/or administration of, and the preparation and delivery of reports
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and other information with respect to, the ShopKo Portfolio Loan Combination or
any related REO Property required to be performed by the holder of the ShopKo
Portfolio Mortgage Loan or contemplated to be performed by a servicer, in any
case pursuant to the ShopKo Portfolio Co-Lender Agreement and/or any related
mezzanine intercreditor agreement.
(i) If any ShopKo Portfolio Non-Trust Loan or any portion thereof or
any particular payments thereon are included in a REMIC or a Grantor Trust, then
neither the Master Servicer nor the Special Servicer shall knowingly take any
action that would result in an Adverse REMIC Event (within the meaning of the
ShopKo Portfolio Co-Lender Agreement) or an Adverse Grantor Trust Event (within
the meaning of the ShopKo Portfolio Co-Lender Agreement), as the case may be.
(j) If any ShopKo Portfolio Non-Trust Loan is securitized, then
(subject to Section 4.02 of the ShopKo Portfolio Co-Lender Agreement) prior to
taking any action hereunder regarding the servicing and administration of the
ShopKo Portfolio Loan Combination or any related REO Property that is subject to
the receipt of written confirmation from each Rating Agency that such action
would not result in a qualification, downgrade or withdrawal of any of the
ratings then assigned to the Certificates, the Master Servicer, the Special
Servicer or the Trustee, as applicable, shall require receipt, subject to the
related loan documents and applicable law, of written confirmation from the
applicable rating agencies that such action would not result in a qualification,
downgrade or withdrawal of any of the ratings then assigned to the Non-Trust
Loan Securities issued in connection with such securitization.
(k) In the event of a direct conflict between the terms of this
Agreement and the terms of the ShopKo Portfolio Co-Lender Agreement, the Master
Servicer or Special Servicer, as applicable, shall follow the terms of the
ShopKo Portfolio Co-Lender Agreement, to the extent consistent with the
Servicing Standard, applicable law and the terms of the ShopKo Portfolio Loan
Combination and the related loan documents.
(l) If any ShopKo Portfolio Non-Trust Loan is securitized, then each
of the Master Servicer, the Special Servicer and the Trustee shall (and shall
cause any Servicing Representative retained by it to) comply with all
requirements with respect thereto contemplated by Section 6.09 of the ShopKo
Portfolio Co-Lender Agreement, including the delivery of all information,
certificates, attestations, letters, reports and other materials contemplated by
such section. Furthermore, if any ShopKo Portfolio Non-Trust Loan is
securitized, then the Master Servicer and the Special Servicer shall each timely
provide (to the extent the reasonable cost thereof, including reasonable
attorneys' fees, is paid or caused to be paid by the requesting party) to the
depositor, the mortgage loan sellers and any underwriters with respect to the
securitization of any Serviced Non Trust Mortgage Loan such opinion(s) of
counsel, certifications and/or indemnification agreement(s) with respect to the
disclosure referred to in the prior sentence with respect to such party,
substantially identical to those, if any, delivered by the Master Servicer or
the Special Servicer, as the case may be, in connection with the information
concerning such party in the Prospectus Supplement and/or any other disclosure
materials relating to the Subject Securitization Transaction.
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ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Collection Account or a Loan Combination Custodial Account, which failure
continues unremedied for two (2) Business Days after the date upon which
such deposit was required to have been made hereunder, or to deposit into,
or remit to the Trustee for deposit into the Distribution Account any
amount (other than a P&I Advance) required to be so deposited or remitted
by it under this Agreement, which failure continues unremedied until 10:00
a.m., New York City time on the related Distribution Date; provided,
however, that to the extent the Master Servicer does not timely make such
remittances 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
(ii) any failure by the Special Servicer to timely deposit into
an REO Account or to timely deposit into, or to timely remit to the Master
Servicer for deposit into, the Collection Account or a Loan Combination
Custodial Account, any amount required to be so deposited or remitted under
this Agreement; or
(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of five (5) Business Days following the
date on which notice shall have been given to the Master Servicer by the
Trustee as provided in Section 3.03(c); or
(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement, which
failure either (A) in the case of any such failure other than a failure
referred to in clause (iv)(B) or (iv)(C) below, continues unremedied for a
period of 30 days after the date on which written notice of the subject
failure, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as the case
may be (with a copy to each other party hereto), by the Holders of
Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such failure (other than a failure
referred to in clause (iv)(B) or (iv)(C) below) which is not curable within
such 30-day period, the Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect such
cure so long as the Master Servicer or the Special Servicer, as the case
may be, has commenced to cure the subject failure within the initial 30-day
period and has provided the Trustee and any affected Non-Trust Mortgage
Loan Noteholder with an Officer's Certificate certifying that it has
diligently pursued, and is diligently continuing to pursue, a full cure,
(B) in the case of the failure to deliver to the Trustee the Annual
Statement of Compliance, the Annual Assessment Report,
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the Annual Attestation Report and/or corresponding accountants' report with
respect to the Master Servicer (or any Additional Item 1123 Servicer or
Sub-Servicing Function Participant, as applicable, retained or engaged
thereby (other than a Designated Sub-Servicer retained or engaged at the
direction of Citigroup or BCRE)) or the Special Servicer (or any Additional
Item 1123 Servicer or Sub-Servicing Function Participant, as applicable,
retained or engaged thereby), as applicable, pursuant to Section 3.13 or
Section 3.14, as applicable, which is required to be part of or
incorporated in a Subsequent Exchange Act Report required to be filed with
respect to the Trust pursuant to the Exchange Act and this Agreement,
continues unremedied beyond 5:00 p.m. (New York City time) on the second
Business Day after the date on which Servicer Notice of the subject failure
has been given to the Master Servicer or the Special Servicer, as the case
may be, by or on behalf of any other party hereto in accordance with
Section 3.13 or Section 3.14, as applicable, or (C) in the case of a
failure to notify the Trustee and the Depositor that an Additional Item
1123 Servicer or a Sub-Servicing Function Participant has been retained or
engaged (other than a Designated Sub-Servicer retained or engaged at the
direction of Citigroup or BCRE), which Additional Item 1123 Servicer or
Sub-Servicing Function Participant was performing duties with respect to
all or any part of the Trust Fund during an Exchange Act Reporting Year,
continues unremedied for 30 days; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement that
materially and adversely affects the interests of any Class of
Certificateholders or Non-Trust Loan Noteholder and which breach 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 or the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as the case
may be (with a copy to each other party hereto), by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that with respect to any such breach which is not curable within
such 30-day period, the Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days so long as the
Master Servicer or the Special Servicer, as the case may be, has commenced
to cure within the initial 30-day period and has provided the Trustee with
an Officer's Certificate certifying that it has diligently pursued, and is
diligently continuing to pursue, a full cure; or
(vi) 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 or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days, provided, however, that the Master Servicer or the Special
Servicer, as appropriate, will have an additional period of 30 days to
effect such discharge, dismissal or stay so long as the Master Servicer or
the Special Servicer, as appropriate, has commenced the appropriate
proceedings to have such decree or order dismissed, discharged or stayed
within the initial 60 day period; or
(vii) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy,
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insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(viii) the Master Servicer or 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; or
(ix) the Master Servicer or the Special Servicer receives actual
knowledge that either Rating Agency has (A) qualified, downgraded or
withdrawn its rating or ratings of one or more Classes of Certificates or
classes of Non-Trust Loan Securities, or (B) placed one or more Classes of
Certificates or classes of Non-Trust Loan Securities on "watch status" in
contemplation of rating downgrade or withdrawal (and such "watch status"
placement shall not have been withdrawn by such Rating Agency within 60
days of the date that the Master Servicer or the Special Servicer obtained
such actual knowledge) and, in the case of either of clauses (A) or (B),
citing servicing concerns with the Master Servicer or the Special Servicer,
as applicable, as the sole or material factor in such rating action; or
(x) the Master Servicer fails to be rated at least "CSS3" by
Fitch or the Special Servicer fails to be rated at least "CSS3" by Fitch;
or
(xi) if any Non-Trust Loan Securities are rated by S&P, the
Master Servicer or the Special Servicer, as the case may be, is no longer
listed on S&P's Select Servicer List as a U.S. Commercial Mortgage Master
Servicer or a U.S. Commercial Mortgage Special Servicer, as applicable, and
the Master Servicer or the Special Servicer, as the case may be, is not
reinstated to that list within 60 days after its removal therefrom; or
(xii) the Master Servicer shall fail to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made on such date, which failure
continues unremedied until 10:00 a.m. New York City time on the next
Business Day succeeding such P&I Advance Date; provided, however, that to
the extent the Master Servicer does not timely make such remittances, 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.
(b) If any Event of Default shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto and the Rating Agencies), terminate all of the rights and obligations
(but not the liabilities for actions and omissions occurring prior thereto) of
the Defaulting Party under this Agreement and in and to the Trust Fund and each
Non-Trust Loan, other than its rights as a Certificateholder hereunder or as
holder of a Non-Trust Loan or, as contemplated by Section 3.11(a) in the case of
the Master Servicer, with respect to the Excess Servicing Strips. From and after
the receipt by the Defaulting Party of such written notice of termination, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a holder
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of any Certificate) or the Serviced Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting 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 Serviced Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten (10) Business Days subsequent to its receipt of the
notice of termination) provide the Trustee with all documents and records,
including those in electronic form, requested thereby to enable the Trustee or a
successor Master Servicer or Special Servicer to assume the Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or
Special Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, (i) the immediate transfer to the Trustee or a
successor Master or Special Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Master
Servicer to the Collection Account, the Distribution Account, any Loan
Combination Custodial Account, a Servicing Account or a Reserve Account (if the
Master Servicer is the Defaulting Party) or that are thereafter received by or
on behalf of it with respect to any Serviced Loan or (ii) the transfer within
two (2) Business Days to the Trustee or a successor Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to an REO Account, the Collection
Account, any Loan Combination Custodial Account, a Servicing Account or a
Reserve Account or delivered to the Master Servicer (if the Special Servicer is
the Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Serviced Loan or REO Property (provided, however, that the Master
Servicer and the Special Servicer each shall, if terminated pursuant to this
Section 7.01(b), continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, and it shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination). Any cost or
expenses in connection with any actions to be taken by the Master Servicer, the
Special Servicer or the Trustee pursuant to this paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within 90 days after
the presentation of reasonable documentation of such costs and expenses, such
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. If and to the extent that the Defaulting Party has not reimbursed such
costs and expenses, the Trustee shall have an affirmative obligation to take all
reasonable actions to collect such expenses on behalf of and at the expense of
the Trust Fund. For purposes of this Section 7.01 and of Section 7.03(b), the
Trustee shall not be deemed to have knowledge of an event which constitutes, or
which with the passage of time or notice, or both, would constitute an Event of
Default described in clauses (i)-(viii) of subsection (a) above unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless notice
of any event which is in fact such an Event of Default is received by the
Trustee and such notice references the Certificates, the Trust Fund or this
Agreement.
(c) Notwithstanding Section 7.01(b) and Section 7.04, if any Event of
Default on the part of the Master Servicer occurs that: (1) affects a ShopKo
Portfolio Non-Trust Loan Noteholder, and the Master Servicer is not otherwise
terminated in accordance with Section 7.01(b), then the Master Servicer may not
be terminated by or at the direction of the related ShopKo Portfolio Non-Trust
Loan Noteholder, or (2) affects solely a ShopKo Portfolio Non-Trust Loan
Noteholder, then the Master Servicer may not be terminated by the Trustee;
provided, however, in the case of (1) or (2), at the request of such affected
ShopKo Portfolio Non-Trust Loan Noteholder, subject to the terms of the
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related Co-Lender Agreement the Trustee shall require the Master Servicer to
appoint, within 30 days of the Trustee's request, a Sub-Servicer (or, if the
ShopKo Portfolio Loan Combination is currently being sub-serviced, to replace,
within 30 days of the Trustee's request, the then-current Sub-Servicer with a
new Sub-Servicer) with respect to the ShopKo Portfolio Loan Combination. In
connection with the appointment of a Sub-Servicer in accordance with this
Section 7.01(c), the Master Servicer shall obtain, at its own expense, written
confirmation from each Rating Agency (and any other rating agency rating any
Non-Trust Loan Securities backed by a ShopKo Portfolio Non-Trust Loan) that such
appointment will not result in a qualification, downgrade or withdrawal of any
of the ratings assigned to the Certificates or any Non-Trust Loan Securities
backed by a ShopKo Portfolio Non-Trust Loan. The related Sub-Servicing Agreement
shall provide that any Sub-Servicer appointed in accordance with this Section
7.01(c) shall be responsible for all duties, and shall be entitled to all
compensation, of the Master Servicer under this Agreement with respect to the
ShopKo Portfolio Loan Combination, except that the Master Servicer shall be
entitled to retain that portion of the Master Servicing Fee for the ShopKo
Portfolio Mortgage Loan or any successor REO Mortgage Loan with respect thereto
that accrues at a rate equal to 0.02% per annum. Such Sub-Servicing Agreement
shall also provide that such Sub-Servicer shall agree to become the master
servicer under a separate servicing agreement (as contemplated by the related
Co-Lender Agreement) in the event that the ShopKo Portfolio Loan Combination is
no longer to be serviced and administered hereunder, which separate servicing
agreement shall contain servicing and administration, limitation of liability,
indemnification and servicing compensation provisions substantially similar to
the corresponding provisions of this Agreement, except for the fact that the
ShopKo Portfolio Loan Combination and the related Mortgaged Property shall be
the sole assets serviced and administered thereunder and the sole source of
funds thereunder. If any Sub-Servicer appointed in accordance with this Section
7.01(c) shall at any time resign or be terminated, then (subject to the related
Co-Lender Agreement) the Master Servicer shall be required to promptly appoint a
substitute Sub-Servicer, which appointment shall not result in a qualification,
downgrade or withdrawal of any of the ratings assigned to the Certificates or
any Non-Trust Loan Securities backed by a ShopKo Portfolio Non-Trust Loan (as
evidenced in writing by each Rating Agency (and any other rating agency rating
any Non-Trust Loan Securities backed by a ShopKo Portfolio Non-Trust Loan)). If
a successor Master Servicer is acting hereunder and such successor Master
Servicer desires to terminate the Sub-Servicer appointed under this Section
7.01(c) without cause, then the terminated Master Servicer that was responsible
for the Event of Default that led to the appointment of such Sub-Servicer shall
be responsible for all costs incurred in connection with such termination,
including the payment of any termination fee.
Further notwithstanding Section 7.01(b) and Section 7.04, if any Event
of Default on the part of the Special Servicer occurs that affects a ShopKo
Portfolio Non-Trust Loan Noteholder, and the Special Servicer is not otherwise
terminated in accordance with Section 7.01(b), then such ShopKo Portfolio
Non-Trust Loan Noteholder may require the Trustee to terminate the duties and
obligations of the Special Servicer with respect to the ShopKo Portfolio Loan
Combination only, but as to no other Mortgage Loan; and, in such event, the
appropriate party shall appoint in accordance with Section 6.09 (or, in the
event of the failure of such party to so appoint, the Trustee shall appoint in
accordance with Section 7.02), within 30 days of such ShopKo Portfolio Non-Trust
Loan Noteholder's request, a replacement special servicer with respect to the
subject Serviced Loan Combination. In connection with the appointment of a
replacement special servicer with respect to the ShopKo Portfolio Loan
Combination at the request of a ShopKo Portfolio Non-Trust Mortgage Loan
Noteholder in accordance with this Section 7.01(c), the Trustee shall obtain
written confirmation from each Rating Agency (and any other rating agency rating
any Non-Trust Loan Securities backed by a ShopKo Portfolio Non-Trust Loan) that
such appointment will not result in a qualification, downgrade or withdrawal of
any of the
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ratings assigned to the Certificates or any Non-Trust Loan Securities backed by
a ShopKo Portfolio Non-Trust Loan. Any replacement special servicer appointed at
the request of a ShopKo Portfolio Non-Trust Loan Noteholder in accordance with
this Section 7.01(c) shall be responsible for all duties, and shall be entitled
to all compensation, of the Special Servicer under this Agreement with respect
to the ShopKo Portfolio Loan Combination. Any replacement special servicer
appointed at the request of a ShopKo Portfolio Non-Trust Loan Noteholder in
accordance with this Section 7.01(c) hereby agrees to become, upon request, the
special servicer under a separate servicing agreement (as contemplated by the
related Co-Lender Agreement) in the event that the ShopKo Portfolio Serviced
Loan Combination is no longer to be serviced and administered hereunder, which
separate servicing agreement shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that the ShopKo Portfolio Loan Combination and the related
Mortgaged Property shall be the sole assets serviced and administered thereunder
and the sole source of funds thereunder. If any replacement special servicer
appointed at the request of a ShopKo Portfolio Non-Trust Loan Noteholder in
accordance with this Section 7.01(c) shall at any time resign or be terminated,
then the appropriate party in accordance with Section 6.09 (or the Trustee in
accordance with Section 7.02, if such party fails to do so) shall be required to
promptly appoint a substitute replacement special servicer, which appointment
shall not result in a qualification, downgrade or withdrawal of any of the
ratings assigned to the Certificates or any Non-Trust Loan Securities backed by
a ShopKo Portfolio Non-Trust Loan (as evidenced in writing by each Rating Agency
(and any other rating agency rating any Non-Trust Loan Securities backed by a
ShopKo Portfolio Non-Trust Loan)). If any replacement special servicer is
appointed at the request of a ShopKo Portfolio Non-Trust Loan Noteholder in
accordance with this Section 7.01(c), then the provisions of Section 6.09(d)
shall apply as if the replacement had occurred in accordance with Section
6.09(b).
In no event shall any waiver of an Event of Default pursuant to
Section 7.04 affect the rights of any ShopKo Portfolio Non-Trust Loan Noteholder
under this Section 7.01(c).
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01, be the successor in all
respects to the Master Servicer or the Special Servicer, as the case may be, in
its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of the
responsibilities, duties and liabilities (except as provided in the next
sentence) of the Master Servicer or the Special Servicer, as the case may be,
arising thereafter, including, without limitation, if the Master Servicer is the
resigning or terminated party, the Master Servicer's obligation to make P&I
Advances, including, without limitation, in connection with any termination of
the Master Servicer for an Event of Default described in Section 7.01(a)(xii),
the unmade P&I Advances that gave rise to such Event of Default; provided that
any failure to perform such duties or responsibilities caused by the Master
Servicer's or the Special Servicer's, as the case may be, failure to provide
information or monies required by Section 7.01 shall not be considered a default
by the Trustee hereunder. Notwithstanding anything contrary in this Agreement,
the Trustee shall in no event be held responsible or liable with respect to any
of the acts, omissions, representations and warranties of the resigning or
terminated party (other than the Trustee) or for any losses incurred by such
resigning or terminated party pursuant to Section 3.06 hereunder nor shall the
Trustee be required to purchase any Mortgage Loan hereunder. As
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compensation therefor, the Trustee shall be entitled to all fees and other
compensation which the resigning or terminated party would have been entitled to
if the resigning or terminated party had continued to act hereunder (other than
fees already earned, including, without limitation, Workout Fees, and other
than, subject to Section 3.11(a), the Excess Servicing Strips). Notwithstanding
the above and subject to its obligations under Section 3.22(d) and 7.01(b), the
Trustee may, if it shall be unwilling in its sole discretion to so act as either
Master Servicer or Special Servicer, as the case may be, or shall, if it is
unable to so act as either Master Servicer or Special Servicer, as the case may
be, or shall, if the Trustee is not approved as a master servicer or a special
servicer, as the case may be, by any of the Rating Agencies or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in writing
to the Trustee, promptly appoint, subject to the approval of each of the Rating
Agencies (as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not cause the qualification, downgrading
or withdrawal of the then-current rating on any Class of Certificates) or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution that meets the requirements of Section 6.02
(including, without limitation, rating agency confirmation); provided, however,
that in the case of a resigning or terminated Special Servicer, such appointment
shall be subject to the rights of the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class to designate a
successor pursuant to Section 6.09. No appointment of a successor to the Master
Servicer or the Special Servicer hereunder shall be effective until the
assumption by the successor to such party of all its responsibilities, duties
and liabilities under this Agreement. Pending appointment of a successor to the
Master Servicer or the Special Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with any such appointment and
assumption described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Serviced Loans and REO
Properties as it and such successor shall agree; provided, however, that, except
as otherwise permitted by the second paragraph of Section 3.11(a), no such
compensation shall be in excess of that permitted the resigning or terminated
party hereunder. Such successor and the other parties hereto shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession.
SECTION 7.03 Notification to Certificateholders and Others.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and, to the
extent known to the Trustee, each Non-Trust Loan Noteholder.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after a Responsible
Officer of the Trustee has notice of the occurrence of such an event, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders, the
Rating Agencies and, to the extent known to the Trustee, each Non-Trust Loan
Noteholder (if affected thereby) notice of such occurrence, unless such default
shall have been cured.
(c) If and when necessary under this Section 7.03 or under Section
11.01(d) hereof, the Trustee shall seek to establish the identity of a Non-Trust
Loan Noteholder by contacting the Master Servicer and the Special Servicer. Upon
such request, the Master Servicer shall promptly provide the
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identity of the Non-Trust Loan Noteholder to the Trustee. The Trustee may
conclusively rely upon such determination by the Master Servicer.
SECTION 7.04 Waiver of Events of Default.
The Holders representing at least 66 2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that (A) an Event
of Default under clause (i), (ii), (ix), (x) or (xii) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes, (B) waiver
of an Event of Default under clause (xii) of Section 7.01(a) further requires
the written consent of the Trustee and (C) a waiver of an Event of Default under
clause (iv)(B) or (iv)(C) of Section 7.01(a) requires the written consent of the
Depositor. Upon any such waiver of an Event of Default, such Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder (except as otherwise provided in Section 7.01(c)). No such waiver
shall extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to Voting Rights
with respect to the matters described above.
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default 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 and 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
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). 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 Event
of Default. Under no circumstances shall the rights provided to the Trustee
under this Section 7.05 be construed as a duty or obligation of the Trustee.
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee 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 man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein. If any such instrument is found not to
conform to the requirements of this Agreement in a material manner, the Trustee
shall take such action as it deems appropriate to have the instrument corrected.
The Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor or the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee 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 certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers 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 this Agreement and the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights 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; and
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(iv) the protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to any Fiscal Agent,
Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
SECTION 8.02 Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may 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;
(ii) the Trustee may consult with counsel and the written advice
of such counsel or 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 therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01 or 10.02, 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; except as provided in Section 10.01 or
10.02, the Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it; provided, however, that nothing contained herein shall relieve the
Trustee of the obligation, upon the occurrence of an Event of Default which
has not been cured, 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 man would exercise or use under the circumstances in
the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, and
except as may be provided in Section 10.01 or 10.02, 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, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; 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
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Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action;
(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; provided, however, that the Trustee shall remain
responsible for all acts and omissions of such agents or attorneys within
the scope of their employment to the same extent as it is responsible for
its own actions and omissions hereunder; and provided, further, that,
unless and until the Trustee has filed a Form 15 with respect to the Trust
in accordance with Section 8.16, the Trustee may not engage any such agent
or attorney-in-fact that would constitute an Additional Item 1123 Servicer
or a Sub-Servicing Function Participant, unless it first obtains the
written consent of the Depositor;
(vii) the Trustee shall not be responsible for any act or
omission of the Master Servicer or the Special Servicer (unless the Trustee
is acting as Master Servicer or the Special Servicer) or the Depositor; and
(viii) neither the Trustee nor the Certificate Registrar shall
have any obligation or duty to monitor, determine or inquire as to
compliance with any restriction on transfer imposed under Article V under
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 Opinion(s) of Counsel described in said Article
applicable with respect to changes in registration of record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement. The Trustee and 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 of the Certificates, made in violation of applicable restrictions
except for its failure to perform its express duties in connection with
changes in registration of record ownership in the Certificate Register.
SECTION 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
statements attributed to the Trustee in Article II, Section 8.15 and Section
11.07 and the signature of the Certificate Registrar and the Authenticating
Agent set forth on each outstanding Certificate, shall be taken as the
statements of the Depositor or the Master Servicer or the Special Servicer, as
the case may be, and the Trustee does not assume any responsibility for their
correctness. Except as set forth in Section 8.15, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature of the Trustee set forth thereon) or
of any Mortgage Loan or related document. The Trustee shall not be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from the Collection
Account or any other account by or on behalf of the Depositor, the Master
Servicer or the Special Servicer except to the extent that such funds are
delivered to the Trustee. The Trustee shall be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
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SECTION 8.04 Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
as it would have if it were not the Trustee or such agent.
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself the Trustee Fee for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, as compensation for all services rendered by the Trustee 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. Except as otherwise
provided in Section 3.06, the Trustee Fees (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall constitute the Trustee's sole compensation for such services to be
rendered by it.
(b) The Trustee (whether individually or in its capacity as Trustee)
and any director, officer, employee, affiliate, agent or "control" person within
the meaning of the Securities Act of 1933, as amended, of the Trustee shall be
entitled to be indemnified for and held harmless by the Trust Fund out of the
Collection Account (and, to the extent that any Loan Combination and/or any
related REO Property is affected, by the Trust Fund and/or the related Non-Trust
Loan Noteholder(s), first out of the related Loan Combination Custodial Account,
and then out of the Collection Account) against any loss, liability or
reasonable "out-of-pocket" expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with
this Agreement, the Mortgage Loans or the Certificates or any act of the Master
Servicer or the Special Servicer taken on behalf of the Trustee as provided for
herein; provided that such expense is an "unanticipated expense incurred by the
REMIC" within the meaning of Treasury regulations section 1.860G-1(b)(3)(ii) and
is not an Advance (the reimbursement for Advances being separately provided for
herein); and provided, further, that neither the Trustee nor any of the other
above specified Persons shall be entitled to indemnification pursuant to this
Section 8.05(b) for (1) any liability specifically required to be borne thereby
pursuant to the terms hereof, or (2) any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of the
Trustee's obligations and duties hereunder, or by reason of its negligent
disregard of such obligations and duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee, as applicable, made herein,
or (3) any loss, liability or expense that constitutes allocable overhead. The
provisions of this Section 8.05(b) shall survive any resignation or removal of
the Trustee and appointment of a successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $100,000,000 and subject to supervision or examination
by a federal or state banking authority. If such bank, trust company,
association or corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this section the combined capital and
surplus of such bank, trust company, association or corporation shall be deemed
to be its combined capital and surplus
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as set forth in its most recent report of condition so published. The Trustee
shall also be an entity with (a) a long-term unsecured debt rating of at least
"AA-" from Fitch and "Aa3" from Xxxxx'x, (b) a long-term unsecured debt rating
of at least "A-" from Fitch and "A3" from Xxxxx'x, if a Fiscal Agent meeting the
requirements of Section 8.17(a) is then currently acting in such capacity, or
(c) in the case of either Rating Agency, such other rating(s) therefrom as shall
not result in the qualification, downgrading or withdrawal of the rating or
ratings assigned to one or more Classes of the Certificates by any Rating Agency
as confirmed in writing. In addition, the Trustee shall at all times satisfy the
requirements of Section 26(a)(1) of the Investment Company Act of 1940, as
amended. In case 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;
provided that, if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Trustee's continuing to act in such capacity
would not (as evidenced in writing by each Rating Agency) cause any Rating
Agency to qualify, downgrade or withdraw any rating assigned thereby to any
Class of Certificates, then upon the execution and delivery of such agreement
the Trustee shall not be required to resign, and may continue in such capacity,
for so long as none of the ratings assigned by the Rating Agencies to the
Certificates is qualified, downgraded or withdrawn thereby. The bank, trust
company, corporation or association serving as Trustee may have normal banking
and trust relationships with the Depositor, the Master Servicer, the Special
Servicer and their respective Affiliates but, except to the extent permitted or
required by Section 7.02, shall not be an "Affiliate" (as such term is defined
in Section III of PTE 2000-58) of the Master Servicer, the Special Servicer, any
sub-servicer, the Underwriters, the Depositor, or any obligor with respect to
Mortgage Loans constituting more than 5.0% of the aggregate unamortized
principal balance of the Mortgage Loans as of the date of the initial issuances
of the Certificates or any "Affiliate" (as such term is defined in Section III
of PTE 2000-58) of any such Person.
SECTION 8.07 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and all the Non-Trust Loan Noteholders and
to all Certificateholders at their respective addresses set forth in the
Certificate Register. Upon receiving such notice of resignation, the Master
Servicer shall promptly appoint a successor trustee meeting the requirements in
Section 8.06 and acceptable to the Depositor and the Rating Agencies by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer, the Non-Trust Loan Noteholders
and the Certificateholders by the Master Servicer. 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.
(b) 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, or if the Trustee shall fail (other than by reason of the failure
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of either the Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
reasonable control), to timely deliver any report to be delivered by the Trustee
pursuant to Section 4.02 and such failure shall continue unremedied for a period
of five (5) days, or if the Trustee shall fail (other than by reason of the
failure of the Master Servicer, the Special Servicer or the Depositor to timely
perform its obligations hereunder or as a result of other circumstances beyond
the Trustee's reasonable control) to timely perform any of its obligations set
forth in Section 3.13, Section 3.14 or Section 8.16(a) and such failure
adversely affects the Depositor's ability to use or file a registration
statement on Form S-3 for purposes of publicly offering commercial
mortgage-backed securities, or if the Trustee fails to make distributions
required pursuant to Section 4.01 or 9.01, then the Depositor may remove the
Trustee and appoint a successor trustee if necessary, acceptable to the Master
Servicer and the Rating Agencies (as evidenced by written confirmation therefrom
to the effect that the appointment of such institution would not cause the
qualification, downgrading or withdrawal of the then-current rating on any Class
of Certificates) by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the Master Servicer, the Special Servicer, the
Non-Trust Loan Noteholders and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor trustee so appointed. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer, the
Non-Trust Loan Noteholders and the remaining Certificateholders by the successor
trustee so appointed.
(d) In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its and any corresponding Fiscal Agent's rights and
obligations under this Agreement and in and to the Mortgage Loans and the
Non-Trust 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 (including, without limitation, P&I
Advances and accrued interest thereon) accrued or owing to it under this
Agreement, with respect to periods prior to the date of such termination or
removal and no termination without cause shall be effective until the payment of
such amounts to the Trustee and any corresponding Fiscal Agent).
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer and to its predecessor trustee an instrument accepting such
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. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a
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third-party Custodian, which Custodian shall become the agent of the successor
trustee), and the Depositor, the Master Servicer, the Special Servicer and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) 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 and the Rating Agencies have
provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, such successor trustee shall mail notice of the succession
of such trustee hereunder to the Depositor, the Master Servicer, the Special
Servicer, the Certificateholders and each Non-Trust Loan Noteholder.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee that has resigned or been removed or terminated, as
contemplated by Section 8.07, to a successor Trustee, including those associated
with transfer of the Mortgage Files and other documents and statements held by
the predecessor Trustee to the successor Trustee, as contemplated by Section
8.08(a), shall be paid by: (i) the predecessor Trustee, if such predecessor
Trustee has resigned in accordance with Section 8.07(a), has been removed in
accordance with Section 8.07(b) or has been removed with cause in accordance
with Section 8.07(c); (ii) the Certificateholders that effected the removal, if
the predecessor Trustee has been removed without cause in accordance with
Section 8.07(c); and (iii) the Trust, if such costs and expenses are not paid by
the predecessor Trustee or the subject Certificateholders, as contemplated by
the immediately preceding clauses (i) and (ii), within 90 days after they are
incurred (provided that such predecessor Trustee or such subject
Certificateholders, as applicable, shall remain liable to the Trust for such
costs and expenses).
SECTION 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which the Trustee may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee, as the case may be, hereunder; provided such entity
shall be eligible under the provisions of Section 8.06 and the Rating Agencies
have provided confirmation pursuant to such Section, 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.
(a) 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
Master Servicer 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 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 Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days
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after the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. 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.
(b) 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, 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 or the Special 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 at the
direction of the Trustee.
(c) 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. 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. Every
such instrument shall be filed with the Trustee.
(d) 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 cease to exist, 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.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11 Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third-party Custodian and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide
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that if the Trustee shall for any reason no longer act in the capacity of
Trustee hereunder (including, without limitation, by reason of an Event of
Default), the successor trustee or its designee may thereupon assume all of the
rights and, except to the extent such obligations arose prior to the date of
assumption, obligations of the Custodian under such agreement or alternatively,
may terminate such agreement without cause and without payment of any penalty or
termination fee; and (iii) not permit the Custodian any rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible and liable
for all acts and omissions of any Custodian. In the absence of any other Person
appointed in accordance herewith acting as Custodian, the Trustee agrees to act
in such capacity in accordance herewith. The initial Custodian shall be the
Trustee. Notwithstanding anything herein to the contrary, if the Trustee is no
longer the Custodian, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Custodian shall be
construed to require that such notice, information or documents also be provided
to the Trustee. Any Custodian hereunder (other than the Trustee) shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement. Any engagement of a third party to act as Custodian with respect to
the Mortgage File or any portion thereof with respect to a Loan Combination
shall be subject to any relevant provisions of the related Co-Lender Agreement.
SECTION 8.12 Appointment of Authenticating Agents.
(a) The Trustee may at the Trustee's expense appoint one or more
Authenticating Agents, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, in accordance with the
obligations and responsibilities herein. Each Authenticating Agent must be
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to do a trust business, have a combined
capital and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible and liable for
all acts and omissions of the Authenticating Agent. In the absence of any other
Person appointed in accordance herewith acting as Authenticating Agent, the
Trustee hereby agrees to act in such capacity in accordance with the terms
hereof. LaSalle Bank National Association shall be the initial Authenticating
Agent. If LaSalle Bank National Association is removed as Trustee, then it shall
also be terminated as Authenticating Agent. Notwithstanding anything herein to
the contrary, if the Trustee is no longer the Authenticating Agent, any
provision or requirement herein requiring notice or any information or
documentation to be provided to the Authenticating Agent shall be construed to
require that such notice, information or documentation also be provided to the
Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to 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.
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(c) Any Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Master Servicer, the Special Servicer and the Depositor. The
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent, the Master
Servicer, the Certificate Registrar and the Depositor. Upon receiving a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.12, the Trustee may appoint a successor
Authenticating Agent, in which case the Trustee shall give written notice of
such appointment to the Master Servicer, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. 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. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13 Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special Servicer,
each Rating Agency and the Depositor, to any Certificateholder or Certificate
Owner and to the OTS, the FDIC and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder or Certificate
Owner, access to any documentation regarding the Mortgage Loans within its
control that may be required to be provided by this Agreement or by applicable
law. Such access shall be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the Trustee
designated by it. Upon request and with the consent of the Depositor and at the
cost of the requesting Party, the Trustee shall provide copies of such
documentation to the Depositor, any Certificateholder and to the OTS, the FDIC
and any other bank or insurance regulatory authority that may exercise authority
over any Certificateholder.
SECTION 8.14 Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or more Tax
Administrators, which shall be authorized to act on behalf of the Trustee in
performing the obligations and duties of the Tax Administrator set forth herein.
The Trustee shall cause any such Tax Administrator to execute and deliver to the
Trustee an instrument in which such Tax Administrator shall agree to act in such
capacity, with the obligations and responsibilities herein. The appointment of a
Tax Administrator shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible and liable for all acts and
omissions of the Tax Administrator. Each Tax Administrator must be acceptable to
the Trustee and must be organized and doing business under the laws of the
United States of America or of any State and be subject to supervision or
examination by federal or state authorities. In the absence of any other Person
appointed in accordance herewith acting as Tax Administrator, the Trustee hereby
agrees to act in such capacity in accordance with the terms hereof. LaSalle Bank
National Association shall be the initial Tax Administrator. If LaSalle Bank
National Association is removed as Trustee, then it shall also be terminated as
Tax Administrator.
(b) Any Person into which any Tax Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Tax Administrator shall be a
party, or any Person succeeding to the
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corporate agency business of any Tax Administrator, shall continue to be the Tax
Administrator without the execution or filing of any paper or any further act on
the part of the Trustee or the Tax Administrator.
(c) Any Tax Administrator may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Master Servicer, the Special Servicer and the Depositor. The
Trustee may at any time terminate the agency of any Tax Administrator by giving
written notice of termination to such Tax Administrator, the Master Servicer,
the Certificate Registrar and the Depositor. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any Tax
Administrator shall cease to be eligible in accordance with the provisions of
this Section 8.14, the Trustee may appoint a successor Tax Administrator, in
which case the Trustee shall given written notice of such appointment to the
Master Servicer, the Special Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor Tax Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor Tax Administrator 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 Tax Administrator. No Tax Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
SECTION 8.15 Representations, Warranties and Covenants of Trustee.
(a) The Trustee hereby represents and warrants to the Master Servicer,
the Special Servicer and the Depositor, and for the benefit of the
Certificateholders, 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.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in a material breach of,
any material agreement or other material instrument to which it is a party
or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions
in which any part of the Trust Fund may be located require that a
co-trustee or separate trustee be appointed to act with respect to such
property as contemplated by Section 8.10, the Trustee has the full power
and authority to carry on its business as now being conducted and to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof (including with respect to any advancing
obligations hereunder), subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
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(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Trustee's good faith and reasonable judgment, is likely
to affect materially and adversely the ability of the Trustee to perform
its obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Trustee to perform its
obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement or the consummation of the transactions contemplated by this
Agreement has been obtained and is effective.
(viii) The Trustee is eligible to act hereunder in accordance
with Section 8.06 and, with respect to any Mortgage Loan that is part of a
Loan Combination, is qualified to hold that Mortgage Loan under the related
Co-Lender Agreement.
(b) The representations and warranties of the Trustee set forth in
Section 8.15(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the date
of its succession, each of the representations and warranties set forth in
Section 8.15(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.15(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 8.16 Reports to the Commission.
(a) With respect to any Exchange Act Reporting Year, the Trustee
shall:
(i) as soon as reasonably practicable (and, in any event, within
15 days or such other period as may be provided under the Exchange Act and
the rules and regulations promulgated thereunder) after each Distribution
Date during such Exchange Act Reporting Year, in accordance with the
Exchange Act, the rules and regulations promulgated thereunder, and
applicable releases and "no-action letters" issued by the Commission,
prepare for filing, arrange for execution by the Depositor and properly and
timely file with the Commission with respect to the Trust, a Form 10-D
Distribution Report with or including, as the case may be, a copy of the
applicable Distribution Date Statement and, to the extent delivered to (or
otherwise actually known by a Responsible Officer of) the Trustee, any
other Form 10-D Required Information to be reported for the period covered
by the subject Form 10-D Distribution Report;
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(ii) during such Exchange Act Reporting Year, at the direction of
the Depositor, in accordance with the Exchange Act, the rules and
regulations promulgated thereunder, and applicable releases and "no-action
letters" issued by the Commission, prepare for filing, arrange for
execution by the Depositor and properly and timely file with the Commission
with respect to the Trust, a Form 8-K Current Report regarding and
disclosing any Form 8-K Required Information (to the extent a Responsible
Officer of the Trustee has actual knowledge of, or has been provided with
written notice of, such information), within the time periods specified
under Form 8-K, the Exchange Act, the rules and regulations promulgated
thereunder and applicable releases and "no-action letters" issued by the
Commission; provided that the Depositor shall cooperate with the Trustee to
determine the applicable required time period; and provided, further, that,
if the Depositor directs the Trustee to file a Form 8-K Current Report in
accordance with this clause (ii), the Depositor shall cooperate with the
Trustee in obtaining all necessary information in order to prepare such
Form 8-K Current Report and the Trustee will report the subject information
in accordance with the Exchange Act, the rules and regulations promulgated
thereunder and applicable releases and "no-action letters" issued by the
Commission;
(iii) within 90 days following the end of such Exchange Act
Reporting Year, prepare, arrange for execution by the Depositor and
properly and timely file with the Commission, with respect to the Trust, a
Form 10-K Annual Report, which complies in all material respects with the
requirements of the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
which shall include as exhibits each Annual Statement of Compliance, Annual
Assessment Report and Annual Attestation Report delivered pursuant to or as
contemplated by Section 3.13 and/or Section 3.14, with respect to the
Master Servicer, the Special Servicer or other applicable Person for such
Exchange Act Reporting Year, and which shall further include a
certification in the form attached hereto as Exhibit O (a "Xxxxxxxx-Xxxxx
Certification") (or in such other form as required by 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)); and
(iv) at the reasonable request of, and in accordance with the
reasonable directions of, the Depositor, prepare for filing, arrange for
execution by the Depositor and promptly file with the Commission an
amendment to any Form 8-K Current Report, Form 10-D Distribution Report or
Form 10-K Annual Report previously filed with the Commission with respect
to the Trust during or relating to, as applicable, such Exchange Act
Reporting Year;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for (or readily convertible to a format suitable for) electronic filing
via the XXXXX system (such suitable formats including "ASCII", "Microsoft Excel"
(solely in the case of reports from the Master Servicer or the Special Servicer
pursuant to Section 3.12), "Microsoft Word" or another format reasonably
acceptable to the Trustee) and shall not have any responsibility to convert any
such items to such format (other than those items generated by it or readily
convertible to such format), and (y) the Depositor shall be responsible for
preparing, executing and filing (via the XXXXX system) a Current Report on Form
8-K reporting the establishment of the Trust and a Current Report on Form 8-K
whereby this Agreement will be filed as an exhibit (the Current Reports on Form
8-K contemplated by this subclause (y) being herein referred to as the "Initial
Form 8-K Current Report"); and provided, further, that if all or any required
portion of a Form 10-K Annual Report or a Form 10-D Distribution Report cannot
be timely filed by the Trustee
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(other than for a reason contemplated by Rule 12b-25(g) of the Exchange Act),
then (i) the Trustee (upon becoming aware thereof or the reasonable likelihood
thereof) shall immediately notify the Depositor, (ii) the Trustee shall (to the
extent appropriate) file a Form 12b-25 (17 C.F.R. 249.322) in connection
therewith consistent with Rule 12b-25 of the Exchange Act, each party hereto
shall reasonably cooperate with the Trustee and the Depositor to complete the
subject Exchange Act Report and such Exchange Act Report (or the applicable
portions thereof) shall be filed with the Commission as soon as reasonably
practicable and, if the Depositor is relying upon Rule 12b-25 of the Exchange
Act, within the time frames contemplated thereby; and provided, further, that if
all or any required portion of any Exchange Act Report cannot be timely filed by
the Trustee for the sole reason that the Trustee is unable to file the report in
electronic format, then (i) the Trustee (upon becoming aware thereof or the
reasonable likelihood thereof) shall immediately notify the Depositor and, as
determined by the Depositor, the Depositor and the Trustee shall comply with
either Rule 201 or 202 of Regulation S-T or apply for an adjustment of filing
date pursuant to Rule 13b of Regulation S-T. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required for (or readily
convertible to a format suitable for) electronic filing via the XXXXX system
(such suitable formats including "ASCII", "Microsoft Excel" (solely in the case
of reports from the Master Servicer or the Special Servicer pursuant to Section
3.12), "Microsoft Word" or another format reasonably acceptable to the Trustee)
any and all items contemplated to be filed with the Commission pursuant to this
Section 8.16(a).
All Form 8-K Current Reports, Form 10-D Distribution Reports and Form
10-K Annual Reports, as well as any amendments to those reports, that are to be
filed with respect to the Trust pursuant to the Exchange Act, and the rules and
regulations promulgated thereunder, and this Section 8.16(a), are (together with
the exhibits thereto) herein referred to as the "Exchange Act Reports". The
Exchange Act Reports, exclusive of the Initial Current Reports on Form 8-K, are
herein referred to as the "Subsequent Exchange Act Reports". All Subsequent
Exchange Act Reports prepared by the Trustee pursuant to this Section 8.16(a)
shall be executed by the Depositor promptly upon delivery thereto and subject to
the Subsequent Exchange Act Report being in form and substance reasonably
acceptable thereto. An officer of the Depositor shall sign the Xxxxxxxx-Xxxxx
Certification included in each Form 10-K Report with respect to the Trust.
No later than (i) 12:00 noon, New York City time, on the Business Day
prior to any filing of a Current Report on Form 8-K (other than an Initial
Current Report on Form 8-K) that is to be made with respect to the Trust as
contemplated by Section 8.16(a), (ii) March 20 of the applicable calendar year
in which the filing of any Annual Report on Form 10-K is to be made with respect
to the Trust as contemplated by Section 8.16(a), and (iii) two (2) Business Days
prior to any filing of any other Subsequent Exchange Act Report that is to be
made with respect to the Trust as contemplated by Section 8.16(a), the Trustee
shall deliver a copy of such Exchange Act Report, together with all exhibits
thereto (to the extent received by the Trustee), to the Depositor. Promptly upon
receipt of any such report and the accompanying exhibits, the Depositor may
review such report and the accompanying exhibits and notify the Trustee of any
material misstatements or omissions relating thereto that come to its attention,
which material misstatements or omissions the Trustee shall correct (with
written evidence of such correction to be sent to the Depositor) prior to the
filing of such report and the accompanying exhibits.
The Trustee shall have no liability to Certificateholders or the Trust
with respect to any failure to properly prepare or file with the Commission any
of the reports under the Exchange Act contemplated by this Section 8.16(a) to
the extent that such failure did not result from any negligence, bad faith or
willful misconduct on the part of the Trustee.
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The Trustee shall make available to all Certificateholders and
Certificate Owners on its internet website each Subsequent Exchange Act Report
that is filed with the Commission with respect to the Trust. The Trustee shall
post each such report on its internet website as soon as reasonably practicable
after the filing thereof with the Commission. In addition, the Trustee shall,
free of charge, upon request, deliver to any Certificateholder, Certificate
Owner or party identified as a prospective Certificateholder or Certificate
Owner copies of all Subsequent Exchange Act Reports that are filed with the
Commission with respect to the Trust. Any request contemplated by the prior
sentence shall be made to LaSalle Bank National Association, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxx-Xxxxxxx
(Global Securities and Trust Services--Citigroup Commercial Mortgage Trust
2006-C4), (telephone number: (000) 000-0000) or to such other Person, address
and/or phone number as the Trustee may specify by notice to Certificateholders.
(b) The Trustee shall sign a certification (in the form attached
hereto as Exhibit P) for the benefit of the Depositor and its officers,
directors and Affiliates (provided, however, that the Trustee shall not
undertake an analysis of the accountant's report attached as an exhibit to the
Form 10-K), and the Master Servicer shall sign a certification (in the form
attached hereto as Exhibit Q-1) for the benefit of the Depositor and its
officers, directors and Affiliates, and the Special Servicer shall sign a
certification (in the form attached hereto as Exhibit Q-2) for the benefit of
the Depositor and its officers, directors and Affiliates, which certifications
of the Master Servicer and Special Servicer shall cover all of the Mortgage
Loans (in the case of the Special Servicer, if specially serviced) and REO
Properties. Each such certification shall be delivered to the Depositor and the
Trustee by March 15th of each year (or if not a Business Day, the immediately
preceding Business Day). The Xxxxxxxx-Xxxxx Certification shall be delivered to
the Trustee for filing by March 25th of each year (or if not a Business Day, the
immediately preceding Business Day). In addition, (i) the Trustee shall
indemnify and hold harmless the Depositor and its officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Trustee's obligations
under this Section 8.16 or the Trustee's negligence, bad faith or willful
misconduct in connection therewith or a breach of the certification delivered by
the Trustee pursuant to the first sentence of this Section 8.16(b), and (ii) the
Master Servicer and Special Servicer shall each severally and not jointly
indemnify and hold harmless the Depositor, the Trustee and their respective
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the Master Servicer's or Special Servicer's obligations, as the case
may be, under this Section 8.16 or the negligence, bad faith or willful
misconduct of the Master Servicer or the Special Servicer, as the case may be,
in connection therewith or a breach of the certification delivered by the Master
Servicer or the Special Servicer, as the case may be, pursuant to the first
sentence of this Section 8.16(b). If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor, then (i) the Trustee
agrees that it shall contribute to the amount paid or payable to the Depositor
as a result of the losses, claims, damages or liabilities of the Depositor in
such proportion as is appropriate to reflect the relative fault of the Depositor
on the one hand and the Trustee on the other in connection with a breach of the
Trustee's obligations under this Section 8.16 or the Trustee's negligence, bad
faith or willful misconduct in connection
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therewith or a breach of the certification delivered by the Trustee pursuant to
the first sentence of this Section 8.16(b), (ii) the Master Servicer agrees that
it shall contribute to the amount paid or payable by the Depositor as a result
of the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the Depositor on
the one hand and the Master Servicer on the other in connection with a breach of
the Master Servicer's obligations under this Section 8.16 or the Master
Servicer's negligence, bad faith or willful misconduct in connection therewith
or a breach of the certification delivered by the Master Servicer pursuant to
the first sentence of this Section 8.16(b) and (iii) the Special Servicer agrees
that it shall contribute to the amount paid or payable by the Depositor as a
result of the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the Depositor on
the one hand and the Special Servicer on the other in connection with a breach
of the Special Servicer's obligations under this Section 8.16 or the Special
Servicer's negligence, bad faith or willful misconduct in connection therewith
or a breach of the certification delivered by the Special Servicer pursuant to
the first sentence of this Section 8.16(b).
(c) At all times during each Exchange Act Reporting Year, each of the
Trustee, the Master Servicer and the Special Servicer shall (and shall use
reasonable efforts to cause each Servicing Representative acting on its behalf
hereunder and, solely in the case of the Trustee, each Trustee Appointee to)
monitor for, and (as soon as reasonably practicable after becoming aware
thereof) notify the Depositor and the Trustee in writing of, the occurrence or
existence of any and all events, conditions, circumstances and/or matters that
constitute or may constitute related Exchange Act Reportable Events with respect
thereto. Within one (1) Business Day of becoming aware of any Form 8-K Required
Information, the Trustee shall promptly notify the Depositor in writing that the
filing of a Form 8-K Current Report may be required with respect to any of the
events, conditions, circumstances and/or matters that are the subject of that
information and, further, shall consult with the Depositor regarding whether to
prepare and file a Form 8-K Current Report under Section 8.16(a)(ii) above with
respect to such events, conditions, circumstances and/or matters and, if
prepared, the form and content of such filing (and the Trustee shall be entitled
to rely on a written direction of the Depositor with regard to whether to make,
and the form and content of, such filing). For purposes of this paragraph, none
of the Trustee, the Master Servicer or the Special Servicer shall be considered
to be aware of any related Exchange Act Reportable Event, and the Trustee shall
not be considered to be aware of any Form 8-K Required Information, Form 10-D
Required Information or Form 10-K Required Information, unless a Responsible
Officer (in the case of the Trustee) or a Servicing Officer (in the case of the
Master Servicer or the Special Servicer) thereof has actual knowledge.
Upon reasonable request of the Depositor or the Trustee, each other
party hereto (including the Trustee, if the Depositor is the requesting party,
and the Depositor, if the Trustee is the requesting party) shall (and shall use
reasonable efforts to cause each Servicing Representative acting on its behalf
hereunder and, solely in the case of the Trustee, each Trustee Appointee, to)
promptly provide to the requesting party any information in its possession as is
necessary or appropriate for the Depositor or the Trustee, as applicable, to
prepare fully and properly any Exchange Act Report with respect to the Trust in
accordance with the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder.
If, during any Exchange Act Reporting Year, a new Master Servicer,
Special Servicer or Trustee is appointed, then such new Master Servicer, Special
Servicer or Trustee, as the case may be, shall in connection with its acceptance
of such appointment provide the Depositor and, in the case of a new Master
Servicer or Special Servicer, the Trustee with such information regarding
itself, its business and operations and its experience and practices regarding
the duties it is to perform under this Agreement, as is required to be reported
by the Depositor pursuant to Item 6.02 of Form 8-K. If, during any Exchange Act
Reporting Year, the Master Servicer, Special Servicer or Trustee appoints a
Servicing Representative that constitutes a Servicer contemplated by Item
1108(a)(2) of Regulation AB in respect of the Subject Securitization Transaction
(other than in connection with the appointment of a Designated Sub-Servicer to
service a Mortgage Loan identified on Exhibit K hereto), then the Master
Servicer,
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Special Servicer or Trustee, as the case may be, shall cause such Servicing
Representative, in connection with its acceptance of such appointment, to
provide the Depositor and the Trustee with such information regarding itself,
its business and operations and its servicing experience and practices, as is
required to be reported by the Depositor pursuant to Item 6.02 of Form 8-K.
Each of the Trustee, the Master Servicer and the Special Servicer
acknowledges and agrees that the information to be provided by it (or by any
Servicing Representative acting on its behalf hereunder or, solely in the case
of the Trustee, any Trustee Appointee) pursuant to or as contemplated by this
Section 8.16(c) is intended to be used in connection with the preparation of
Exchange Act Reports with respect to the Trust.
If any Non-Trust Loan has been included in a commercial mortgage
securitization involving the issuance of publicly offered commercial
mortgage-backed securities, then the Form 8-K Required Information, Form 10-D
Required Information and Form 10-K Required Information required to be reported
to the Depositor under this Section 8.16(c) shall simultaneously be reported to
the depositor and trustee in respect of such commercial mortgage securitization
to the extent required for such depositor and/or trustee to satisfy any Exchange
Act reporting requirements in respect of the related commercial mortgage trust.
(d) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2006), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust notifying the Commission of the suspension of the
reporting requirements under the Exchange Act and shall notify all parties to
this Agreement in writing that a Form 15 has been filed.
(e) The respective parties hereto agree to cooperate with all
reasonable requests made by the Depositor or any officer thereof in connection
with such Person's attempt to conduct any due diligence that such Person
reasonably believes to be appropriate in order to allow it to deliver any
Xxxxxxxx-Xxxxx Certification or portion thereof with respect to the Trust.
(f) Unless the other parties hereto receive written notice from the
Trustee to the contrary, the Trustee hereby certifies that it intends to file
any Form 10-K Annual Report with respect to the Trust for any particular fiscal
year on the last Business Day that is not more than 90 days following the end of
such fiscal year. Unless an alternative time period is provided for in this
Agreement, the respective parties hereto shall deliver to the Trustee, at least
10 Business Days prior to the date on which the Trustee intends to file any Form
10-K Annual Report as contemplated by Section 8.16(a), any items required to be
delivered by such party that are to be an exhibit to such Form 10-K Annual
Report. The Trustee hereby notifies the Master Servicer and the Special Servicer
that a Form 10-K Annual Report shall be required to be filed with respect to the
Trust for 2006.
(g) In the event the parties to this Agreement desire to further
clarify or amend any provision of this Section 8.16, this Agreement shall be
amended to reflect the new agreement between the parties covering matters in
this Section 8.16 pursuant to Section 11.01, which amendment shall not require
any Opinion of Counsel or Rating Agency confirmations or the consent of any
Certificateholder or any Serviced Non-Trust Mortgage Loan Noteholder; provided
that no such amendment shall diminish the filing requirements under this Section
8.16 on the part of the parties to this Agreement, as a collective whole, in
contravention of applicable law.
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(h) Prior to April 1 of the first year in which the Trustee has filed
a Form 15 with the Commission in accordance with this section, if at any time a
Servicing Representative retained or engaged by the Master Servicer, the Special
Servicer or the Trustee with respect to all or any portion of the Trust Fund
fails to deliver, if and to the extent applicable in accordance with Regulation
AB and this Agreement, any of the items set forth in the following clauses (i),
(ii) and/or (iii), then the Master Servicer, the Special Servicer or the
Trustee, as the case may be, shall deliver a written notice thereof to the
Depositor and shall promptly terminate all engagements with the subject
Servicing Representative relating to the Subject Securitization Transaction: (i)
any Annual Statement of Compliance contemplated by Item 1123 of Regulation AB,
as and when provided under Section 3.13; or (ii) any Annual Assessment Report
contemplated by Item 1122 of Regulation AB, as and when provided under Section
3.14; or (iii) any Annual Attestation Report contemplated by Item 1122 of
Regulation AB (together with, if required to be filed with the Commission under
applicable law, the consent of the applicable registered public accounting firm
to file such corresponding Annual Attestation Report with the Commission), as
and when provided under Section 3.14. In addition, prior to April 1 of the first
year in which the Trustee has filed a Form 15 with the Commission in accordance
with this section, if at any time the Depositor delivers a written notice to the
Master Servicer, the Special Servicer or the Trustee stating that any Servicing
Representative retained or engaged thereby has defaulted on its obligation to
deliver, (i) if and to the extent applicable in accordance with Regulation AB
and this Agreement, any of the items set forth in clauses (i), (ii) and/or (iii)
of the preceding sentence, as and when provided under this Agreement, or (ii) if
and to the extent applicable in accordance with Regulation AB and another
pooling and servicing agreement to which the Depositor is a party, any of the
items similar to those set forth in clauses (i), (ii) and/or (iii) of the
preceding sentence, as and when provided under such other pooling and servicing
agreement, then the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall promptly terminate all engagements with the subject Servicing
Representative relating to the Subject Securitization Transaction.
(i) Each of the Master Servicer, the Special Servicer and the Trustee
shall indemnify the Depositor, Citigroup Global Markets Realty Corp. and
Citigroup Global Markets Inc. for, and hold the Depositor, Citigroup Global
Markets Realty Corp. and Citigroup Global Markets Inc. harmless from and
against, any and all losses, liabilities, claims, damages, costs and expenses
whatsoever, as incurred, arising out of or based upon the failure of the Master
Servicer, the Special Servicer or the Trustee, as the case may be, or any
Servicing Representative acting on behalf of the Master Servicer, the Special
Servicer or the Trustee, as the case may be (exclusive of a Designated
Sub-Servicer, insofar as such Sub-Servicer does not service any Mortgage Loans
other than those identified on Exhibit K hereto), to deliver or cause to be
delivered to the Trustee, the Depositor and each affected Non-Trust Loan
Noteholder, with respect to any Exchange Act Reporting Year, as and when
required or contemplated by Section 3.13 and/or Section 3.14: (i) any Annual
Statement of Compliance; (ii) any Annual Assessment Report; and/or (iii) any
Annual Attestation Report (together with, if required to be filed with the
Commission under applicable law, the accountants' consent authorizing the filing
thereof with the Commission).
SECTION 8.17 Appointment of a Fiscal Agent.
(a) In order to satisfy the eligibility requirements of Section 8.06
(insofar as such requirements relate to ratings), the Trustee may appoint a
Fiscal Agent. Any Fiscal Agent shall at all times maintain a long-term unsecured
debt rating of no less than "AA-" from Fitch and "Aa3" from Xxxxx'x (or, in the
case of either Rating Agency, such other rating as shall not result in the
withdrawal,
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downgrade or qualification of the rating assigned by such Rating Agency to any
Class of Certificates rated by such Rating Agency, as confirmed in writing by
such Rating Agency).
(b) To the extent that the Trustee is required, pursuant to the terms
of this Agreement, to make any Advance, whether as successor master servicer or
otherwise, and has failed to do so in accordance with the terms hereof, any
Fiscal Agent appointed by the Trustee shall make such Advance as and when
required by the terms of this Agreement on behalf the Trustee as if such Fiscal
Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes an
Advance pursuant to this Section 8.17(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust Fund, the Depositor, the Master Servicer or the
Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this Section 8.17
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 8.06). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
8.17(a) or (ii) the Trustee shall have received written confirmation from each
Rating Agency that the succession of such proposed successor fiscal agent would
not, in and of itself, result in an Adverse Rating Event with respect to any
Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders in
writing of the appointment, resignation or removal of any Fiscal Agent.
SECTION 8.18 Representations and Warranties of Fiscal Agent.
(a) Any Fiscal Agent shall hereby represent and warrant to each of the
other parties hereto and for the benefit of the Certificateholders and the
Non-Trust Mortgage Noteholders, as of the date of its appointment, that:
(i) Such Fiscal Agent is a legal entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
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(ii) The execution and delivery of this Agreement by such Fiscal
Agent, and the performance and compliance with the terms of this Agreement
by such Fiscal Agent, will not violate such Fiscal Agent's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other instrument to which it
is a party or by which it is bound.
(iii) Such Fiscal Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of such Fiscal Agent, enforceable against such Fiscal
Agent in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) Such Fiscal Agent is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in such Fiscal Agent's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of such Fiscal
Agent to perform its obligations under this Agreement or the financial
condition of such Fiscal Agent.
(vi) No litigation is pending or, to the best of such Fiscal
Agent's knowledge, threatened against such Fiscal Agent that, if determined
adversely to such Fiscal Agent, would prohibit such Fiscal Agent from
entering into this Agreement or, in such Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of such Fiscal Agent to perform its obligations under this
Agreement or the financial condition of such Fiscal Agent.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by such Fiscal Agent of or compliance by such Fiscal Agent with
this Agreement, or the consummation of the transactions contemplated by
this Agreement, has been obtained and is effective, except where the lack
of consent, approval, authorization or order would not have a material
adverse effect on the performance by such Fiscal Agent under this
Agreement.
(b) The representations and warranties of any Fiscal Agent set forth
in Section 8.18(a) shall survive its appointment as such under this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall given prompt written notice thereof to the
other parties hereto.
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ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer and the Trustee (other than the obligations of the Trustee
to provide for and make payments to Certificateholders as hereafter set forth)
shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (A) the purchase by the Master Servicer, the Special Servicer or the
Majority Controlling Class Certificateholder of all Mortgage Loans and each REO
Property (or, in the case of a Loan Combination Mortgaged Property, if it has
become an REO Property, the Trust's interest therein) remaining in the Trust
Fund at a price equal to (1) the aggregate Purchase Price of all the Mortgage
Loans included in the Trust Fund, plus (2) the appraised value of each REO
Property (or, in the case of a Loan Combination Mortgaged Property, if it has
become an REO Property, the Trust's interest therein), if any, included in the
Trust Fund, such appraisal to be conducted by an Independent Appraiser selected
by the Master Servicer and approved by the Trustee, minus (3) if the purchaser
is the Master Servicer or the Special Servicer, the aggregate amount of
unreimbursed Advances made by the Master Servicer or the Special Servicer, as
applicable, together with any interest accrued and payable to the Master
Servicer in respect of unreimbursed Advances in accordance with Sections 3.03(d)
and 4.03(d) and any unpaid Master Servicing Fees or Special Servicing Fees, as
applicable, remaining outstanding (which items shall be deemed to have been paid
or reimbursed to the Master Servicer or Special Servicer, as applicable, in
connection with such purchase), (B) the exchange by all the Certificateholders
(exclusive of the Class R Certificateholders) of their respective Certificates
for all the Mortgage Loans and each REO Property remaining in the Trust Fund in
the manner set forth below in this Section 9.01, and (C) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property (or, in the case of a Loan Combination if it has become an
REO Property, the Trust's interest therein) remaining in the Trust Fund, and
(ii) to the Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer
and the officers, directors, employees and agents of each of them of all amounts
which may have become due and owing to any of them hereunder; provided, however,
that in no event shall the Trust Fund created hereby 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 Court of St.
Xxxxx, living on the date hereof.
Following the date on which the aggregate Certificate Principal
Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class A-3, 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 is reduced to zero, all the remaining Certificateholders (exclusive
of the Class R Certificateholders), acting together (each having agreed in
writing to so act, a copy of which writing shall be delivered to the Trustee),
shall have the right, with the consent of the Master Servicer, to exchange all
of the Certificates (exclusive of the Class R Certificates) for all of the
Mortgage Loans and each REO Property (or, in the case of a Loan Combination REO
Property, the Trust's interest therein) remaining in the Trust Fund as
contemplated by clause (i)(B) of the first paragraph of this Section 9.01, 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 all the Certificateholders
(exclusive of
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the Class R Certificateholders) elect (as evidenced by a writing signed by each
such Certificateholder and delivered to the Trustee) to exchange all of the
Certificates for all of the Mortgage Loans and each REO Property (or, in the
case of a Loan Combination REO Property, the Trust's interest therein) remaining
in the Trust Fund, the Certificateholders (exclusive of the Class R
Certificateholders), not later than the fifth Business Day preceding 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 then due and owing to the Depositor, the
Master Servicer, the Special Servicer, the Trustee and any Fiscal Agent pursuant
to Section 3.05(a), or that may be withdrawn from the Distribution Account
pursuant to Section 3.05(b), including, without limitation an amount (payable to
the Trustee out of the Distribution Account as if it was interest earned on
Permitted Investments) equal to interest calculated at the Prime Rate on the
aggregate Certificate Principal Balance of the Principal Balance Certificates,
as of the first day of the current calendar month from and including one (1)
Business Day prior to such final Distribution Date to but excluding such final
Distribution Date, but only to the extent that such amounts are not already on
deposit in the Collection Account. In addition, on the P&I Advance Date relating
to the final Distribution Date, the Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred thereto on such P&I
Advance Date from the Collection Account pursuant to the first paragraph of
Section 3.04(b), 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 and following the surrender of all the
Certificates (exclusive of the Class R Certificates) on the final Distribution
Date, the Trustee shall release or cause to be released to a designee of all the
Certificateholders (exclusive of the Class R Certificateholders) (each such
Certificateholder having agreed to such designation in a writing delivered to
the Trustee), the Mortgage Files for the remaining Mortgage Loans and REO
Properties (or, in the case of a Loan Combination REO Property, the Trust's
interest therein) and shall execute all assignments, endorsements and other
instruments furnished to it by the Certificateholders (exclusive of the Class R
Certificates) as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties (or, in the case of a Loan Combination REO Property, the
Trust's interest therein) remaining in the Trust Fund. Any transfer of Mortgage
Loans pursuant to this paragraph shall be on a servicing-released basis.
The Master Servicer, the Special Servicer or the Majority Controlling
Class Certificateholder may at its option elect to purchase all of the Mortgage
Loans and each REO Property (or, in the case of a Loan Combination Mortgaged
Property, if it has become an REO Property, the Trust's interest therein)
remaining in the Trust Fund as contemplated by clause (i)(A) of the preceding
paragraph by giving written notice to the other parties hereto no later than 60
days prior to the anticipated date of purchase; provided, however, that (i) the
aggregate Stated Principal Balance of the Mortgage Pool at the time of such
election is less than 1.0% of the aggregate Cut-off Date Balances of all the
Mortgage Loans originally included in the Trust Fund, (ii) the Master Servicer
shall not have the right to effect such a purchase if, within 30 days following
the Master Servicer's delivery of a notice of election pursuant to this
paragraph, the Special Servicer or the Majority Controlling Class
Certificateholder shall give notice of its election to purchase all of the
Mortgage Loans and each REO Property (or, in the case of a Loan Combination
Mortgaged Property, if it has become an REO Property, the Trust's interest
therein) remaining in Trust Fund and shall thereafter effect such purchase in
accordance with the terms hereof, and (iii) the Majority Controlling Class
Certificateholder shall not have the right to effect such a purchase if, within
30 days following the Majority Controlling Class Certificateholder's delivery of
a notice of election pursuant to this paragraph, the Special Servicer shall give
notice of its election to purchase all of the Mortgage Loans and each REO
Property (or, in the case of a Loan Combination Mortgaged Property, if it has
become an REO Property, the Trust's interest therein) remaining in Trust Fund
and shall thereafter effect such purchase in accordance with the terms
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hereof. If the Trust Fund is to be terminated in connection with the Master
Servicer's, the Special Servicer's or the Majority Controlling Class
Certificateholder's purchase of all of the Mortgage Loans and each REO Property
(or, in the case of a Loan Combination Mortgaged Property, if it has become an
REO Property, the Trust's interest therein) remaining in the Trust Fund, then
the Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, as applicable, shall deposit, or deliver to the Master
Servicer for deposit, in the Collection Account (or, to the extent allocable to
any Loan Combination REO Property, in the related Loan Combination Custodial
Account) not later than the Determination Date relating to the Distribution 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. On the
P&I Advance Date relating to such final Distribution Date, the Master Servicer
shall transfer to the Distribution Account all amounts required to be
transferred thereto on such P&I Advance Date from the Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Collection Account that would otherwise be held for
future distribution. Upon confirmation that such final deposit has been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Special Servicer, the Majority Controlling Class Certificateholder, as
applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, as applicable, as shall be necessary to effectuate transfer
of the Mortgage Loans and REO Properties (or, in the case of a Loan Combination
Mortgaged Property, if it has become an REO Property, the Trust's interest
therein) to the Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder (or their respective designees), as
applicable. Any transfer of Mortgage Loans pursuant to this paragraph shall be
on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Master Servicer's, the Special Servicer's or the Majority Controlling
Class Certificateholder's purchase of the Mortgage Loans and each REO Property
(or, in the case of a Loan Combination Mortgaged Property, if it has become an
REO Property, the Trust's interest therein) remaining in the Trust Fund, not
earlier than the 15th day and not later than the 25th day of the month next
preceding the month of the final distribution on the Certificates or (b)
otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and final payment of the
Certificates will be made, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Trustee shall give such notice to the Master Servicer,
the Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates (exclusive of the
Class Y Certificates) by the applicable Certificateholders on the final
Distribution Date, the Trustee shall distribute to each such Certificateholder
so presenting and surrendering its Certificates such Certificateholder's
Percentage Interest of that portion of the amounts then on deposit in the
Distribution Account that, in accordance with Section 4.01, are allocable to
payments on the Class of Certificates so presented and surrendered.
Upon presentation and surrender of the Class Y Certificates by the
applicable Certificateholders on the final Distribution Date, the Trustee shall
distribute to each such Certificateholder so presenting and surrendering its
Class Y Certificates such Certificateholder's Percentage Interest of any
Additional Interest then on deposit in the Additional Interest Account that was
paid on an ARD Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
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Any funds not distributed to any Holder or Holders of Certificates on
the final Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one (1) year
after the second notice all such Certificates shall not have been surrendered
for cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate, and
shall deal with all such unclaimed amounts in accordance with applicable law.
The costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder.
SECTION 9.02 Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder purchases, or the Certificateholders
(exclusive of the Class R Certificateholders) exchange their Certificates for,
all of the Mortgage Loans and each REO Property (or, in the case of a Loan
Combination if it has become an REO Property, the Trust's interest therein)
remaining in the Trust Fund as provided in Section 9.01, the Trust Fund (and,
accordingly, each REMIC Pool) shall be terminated in accordance with the
following additional requirements, unless the Person effecting the purchase
obtains at its own expense and delivers to the Trustee and, in the case of the
Depositor, to the Trustee and the Master Servicer, an Opinion of Counsel,
addressed to the Trustee and the Master Servicer, to the effect that the failure
of the Trust Fund to comply with the requirements of this Section 9.02 will not
result in the imposition of taxes on "prohibited transactions" of any REMIC Pool
as defined in Section 860F of the Code or cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each
REMIC Pool pursuant to Treasury regulations section 1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
either (A) sell all of the assets of REMIC I to the Master Servicer, the
Special Servicer or the Majority Controlling Class Certificateholder, as
applicable, for cash or (B) exchange all the assets of REMIC I for the
Certificates (exclusive of the Class R Certificates); and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to specify the 90-day liquidation period for each
REMIC Pool, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Each such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending December 31, 2006, in the case of each REMIC
Pool.
(b) The REMIC I Regular Interests and the Regular Certificates are
hereby designated as "regular interests" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I and REMIC II, respectively; provided that the
Class X Certificates shall evidence multiple "regular interests" in REMIC II.
The Class R Certificates are hereby designated as the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in each REMIC
Pool. None of the Master Servicer, the Special Servicer or the Trustee shall (to
the extent within its control) permit the creation of any other "interests" in
any REMIC Pool (within the meaning of Treasury regulations section
1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code. The "latest
possible maturity date" of the REMIC I Regular Interests and the Regular
Certificates (or, in the case of the Class X Certificates, the "regular
interests" in REMIC II evidenced thereby) for purposes of the REMIC Provisions
shall be the Rated Final Distribution Date.
(d) The Plurality Class R Certificateholder as to the applicable
taxable year is hereby designated as the Tax Matters Person of each REMIC Pool,
and shall act on behalf of the related REMIC in relation to any tax matter or
controversy and shall represent the related REMIC in any administrative or
judicial proceeding relating to an examination or audit by any governmental
taxing authority; provided that the Tax Administrator is hereby irrevocably
appointed to act and shall act as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) Except as otherwise provided in Section 3.17(a) and subsections
(h) and (i) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the Internal Revenue Service or state tax authorities,
which extraordinary expenses shall be payable or reimbursable to the Trustee
from the Trust Fund unless otherwise provided in Section 10.01(g) or 10.01(h)).
(f) Within 30 days after the Closing Date, the Tax Administrator shall
acquire taxpayer identification numbers for each REMIC Pool by preparing and
filing Internal Revenue Service Forms SS-4 or otherwise obtain them and shall
prepare and file (if not previously prepared and filed) with the Internal
Revenue Service Form 8811, "Information Return for Real Estate Mortgage
Investment Conduits (REMIC) and Issuers of Collateralized Debt Obligations" for
the Trust Fund. In addition, the Tax Administrator shall prepare, cause the
Trustee to sign and file all of the other Tax Returns in respect
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of each REMIC Pool. The expenses of preparing and filing such returns shall be
borne by the Tax Administrator without any right of reimbursement therefor. The
other parties hereto shall provide on a timely basis to the Tax Administrator or
its designee such information with respect to each REMIC Pool as is in its
possession and reasonably requested by the Tax Administrator to enable it to
perform its obligations under this Article. Without limiting the generality of
the foregoing, the Depositor, within ten (10) days following the Tax
Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, as to the valuations and Issue Prices of the
Certificates, and the Tax Administrator's duty to perform its reporting and
other tax compliance obligations under this Section 10.01 shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the Tax Administrator to perform such
obligations.
(g) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or, with respect to State and
Local Taxes, any state or local taxing authority. Included among such duties,
the Tax Administrator shall provide to: (i) any Transferor of a Class R
Certificate or agent of a non-Permitted Transferee, such information as is
necessary for the application of any tax relating to the transfer of a Class R
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each REMIC Pool.
(h) The Tax Administrator shall perform its duties hereunder so as to
maintain the status of each REMIC Pool as a REMIC under the REMIC Provisions
(and the Trustee, the Master Servicer and the Special Servicer shall assist the
Tax Administrator to the extent reasonably requested by the Tax Administrator
and to the extent of information within the Trustee's, the Master Servicer's or
the Special Servicer's possession or control). None of the Tax Administrator,
Master Servicer, the Special Servicer, or the Trustee shall knowingly take (or
cause any REMIC Pool to take) any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of any REMIC Pool as a REMIC, or
(ii) except as provided in Section 3.17(a), result in the imposition of a tax
upon any REMIC Pool (including, but not limited to, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code or the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code (any such
endangerment or imposition or, except as provided in Section 3.17(a), imposition
of a tax, an "Adverse REMIC Event")), unless the Tax Administrator has obtained
or received an Opinion of Counsel (at the expense of the party requesting such
action or at the expense of the Trust Fund if the Tax Administrator seeks to
take such action or to refrain from acting for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse REMIC Event. The Tax Administrator shall not take any action or
fail to take any action (whether or not authorized hereunder) as to which the
Master Servicer or the Special Servicer has advised it in writing that either
the Master Servicer or the Special Servicer has received or obtained an Opinion
of Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. In addition, prior to taking any action with respect to any REMIC
Pool, or causing any REMIC Pool to take any action that is not expressly
permitted under the terms of this Agreement, the Master Servicer and the Special
Servicer shall consult with the Tax Administrator or its designee, in writing,
with respect to whether such action could cause an Adverse
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REMIC Event to occur. Neither the Master Servicer nor the Special Servicer shall
take any such action or cause any REMIC Pool to take any such action as to which
the Tax Administrator has advised it in writing that an Adverse REMIC Event
could occur, and neither the Master Servicer nor the Special Servicer shall have
any liability hereunder for any action taken by it in accordance with the
written instructions of the Tax Administrator. The Tax Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Trustee or the Tax
Administrator. At all times as may be required by the Code, the Tax
Administrator (to the extent it is within its control) shall take all necessary
actions within the scope of its responsibilities as more specifically set forth
in this Agreement such that it does not cause substantially all of the assets of
each REMIC Pool to fail to consist of "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(i) If any tax is imposed on any REMIC Pool, including, without
limitation, "prohibited transactions" taxes as defined in Section 860F(a)(2) of
the Code, any tax on "net income from foreclosure property" as defined in
Section 860G(c) of the Code, any taxes on contributions to any REMIC Pool after
the Startup Day pursuant to Section 860G(d) of the Code, and any other tax
imposed by the Code or any applicable provisions of State or Local Tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the Tax Administrator, if such tax arises out of
or results from a breach by the Tax Administrator of any of its obligations
under this Article X (provided that no liability shall be imposed upon the Tax
Administrator under this clause if another party has responsibility for payment
of such tax under clauses (iii) or (v) of this subsection (i); (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Article X; (iii)
the Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Article X;
(iv) the Trustee if such tax arises out of or results from a breach by the
Trustee of any of its respective obligations under Article IV, Article VIII or
this Article X; (v) the applicable Mortgage Loan Seller, if such tax was imposed
due to the fact that any of the Mortgage Loans did not, at the time of their
transfer to the Trust constitute a "qualified mortgage" as defined in Section
860G(a)(3) of the Code; or (vi) the Trust Fund, excluding the respective
portions thereof constituting Grantor Trust Y, in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust Fund. Any such amounts payable by the
Trust Fund shall be paid by the Trustee upon the written direction of the Tax
Administrator out of amounts on deposit in the Distribution Account in reduction
of the Available Distribution Amount pursuant to Section 3.05(b), subject to
Section 3.05(c).
(j) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis.
(k) Following the Startup Day, none of the Trustee, the Master
Servicer or the Special Servicer shall accept any contributions of assets to any
REMIC Pool unless it shall have received an Opinion of Counsel (at the expense
of the party seeking to cause such contribution and in no event at the expense
of the Trust Fund or the Trustee) to the effect that the inclusion of such
assets in such REMIC Pool will not cause: (i) such REMIC Pool to fail to qualify
as a REMIC at any time that any Certificates are outstanding; or (ii) the
imposition of any tax on such REMIC Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
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(l) None of the Trustee, the Master Servicer or the Special Servicer
shall consent to or, to the extent it is within the control of such Person,
permit: (i) the sale or disposition of any of the Mortgage Loans (except in
connection with (A) the default or foreclosure of a Mortgage Loan, including,
but not limited to, the sale or other disposition of a Mortgaged Property
acquired by deed in lieu of foreclosure, (B) the bankruptcy of a REMIC Pool, (C)
the termination of each REMIC Pool pursuant to Article IX of this Agreement, or
(D) a purchase of Mortgage Loans pursuant to or as contemplated by Article II or
III of this Agreement); (ii) the sale or disposition of any investments in the
Collection Account, the Distribution Account or any REO Account for gain; or
(iii) the acquisition of any assets on behalf of a REMIC Pool (other than (1) a
Mortgaged Property acquired through foreclosure, deed in lieu of foreclosure or
otherwise in respect of a defaulted Mortgage Loan, (2) a Qualified Substitute
Mortgage Loan pursuant to Article II hereof and (3) Permitted Investments
acquired in connection with the investment of funds in the Collection Account,
any Loan Combination Custodial Account, the Distribution Account or any REO
Account); in any event unless it has received an Opinion of Counsel (at the
expense of the party seeking to cause such sale, disposition or acquisition, but
in no event at the expense of the Trust Fund or the Trustee) to the effect that
such sale, disposition or acquisition, will not cause: (x) any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding; or
(y) the imposition of any tax on any REMIC Pool under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(m) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which any REMIC Pool will receive a fee or other compensation for services nor
permit any REMIC Pool to receive any income from assets other than "qualified
mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02 Grantor Trust Administration.
(a) The Tax Administrator shall treat Grantor Trust Y, for tax return
preparation purposes, as a grantor trust under the Code and shall treat the
Class Y Grantor Trust Assets as separate assets of Grantor Trust Y, and not of
any REMIC Pool, as permitted by Treasury regulations section 1.860G-2(i)(1). The
Class Y Certificates are hereby designated as representing an undivided
beneficial interest in Grantor Trust Y.
(b) The Tax Administrator shall pay out of its own funds any and all
routine tax administration expenses of the Trust Fund incurred with respect to
Grantor Trust Y (but not including any professional fees or expenses related to
audits or any administrative or judicial proceedings with respect to the Trust
Fund that involve the Internal Revenue Service or state tax authorities, which
extraordinary expenses shall be payable or reimbursable to the Tax Administrator
from the Trust Fund unless otherwise provided in Section 10.02(e) or 10.02(f)).
(c) The Tax Administrator shall prepare, cause the Trustee to sign and
file when due all of the Tax Returns in respect of Grantor Trust Y. The expenses
of preparing and filing such returns shall be borne by the Tax Administrator
without any right of reimbursement therefor. The other parties hereto shall
provide on a timely basis to the Tax Administrator or its designee such
information with respect to Grantor Trust Y as is in its possession and
reasonably requested by the Tax Administrator to enable it to perform its
obligations under this Section 10.02. Without limiting the generality of the
foregoing, the Depositor, within ten (10) days following the Tax Administrator's
request therefor, shall provide in writing to the Tax Administrator such
information as is reasonably requested by the Tax
250
Administrator for tax purposes, and the Tax Administrator's duty to perform its
reporting and other tax compliance obligations under this Section 10.02 shall be
subject to the condition that it receives from the Depositor such information
possessed by the Depositor that is necessary to permit the Tax Administrator to
perform such obligations.
(d) The Tax Administrator shall furnish or cause to be furnished to
each Holder of a Class Y Certificate, on the cash or accrual method of
accounting, as applicable, such information as to their respective portions of
the income and expenses of Grantor Trust Y at the time and in the manner
required under the Code, and shall perform on behalf of Grantor Trust Y all
reporting and other tax compliance duties that are required in respect thereof
under the Code, the Grantor Trust Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority.
(e) The Tax Administrator shall perform its duties hereunder so as to
maintain the status of Grantor Trust Y as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the Tax Administrator to the extent reasonably requested by the Tax
Administrator and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the Tax
Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause Grantor Trust Y to take) any action or fail to take (or
fail to cause to be taken) any action that, under the Grantor Trust Provisions,
if taken or not taken, as the case may be, could endanger the status of Grantor
Trust Y as a grantor trust under the Grantor Trust Provisions (any such
endangerment of grantor trust status, an "Adverse Grantor Trust Event"), unless
the Tax Administrator has obtained or received an Opinion of Counsel (at the
expense of the party requesting such action or at the expense of the Trust Fund
if the Tax Administrator seeks to take such action or to refrain from taking any
action for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse Grantor Trust Event. None of
the other parties hereto shall take any action or fail to take any action
(whether or not authorized hereunder) as to which the Tax Administrator has
advised it in writing that the Tax Administrator has received or obtained an
Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to Grantor Trust Y, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the Tax
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. Neither the Master Servicer
nor the Special Servicer shall have any liability hereunder for any action taken
by it in accordance with the written instructions of the Tax Administrator. The
Tax Administrator may consult with counsel to make such written advice, and the
cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the cost or expense of
the Trust Fund, the Tax Administrator or the Trustee. Under no circumstances may
the Tax Administrator vary the assets of Grantor Trust Y so as to take advantage
of variations in the market so as to improve the rate of return of Holders of
the Class Y Certificates.
(f) If any tax is imposed on Grantor Trust Y, such tax, together with
all incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee if such tax arises out of or results from a
breach by the Trustee of any of its obligations under Article IV, Article
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VIII or this Section 10.02; or (v) the portion of the Trust Fund constituting
Grantor Trust Y in all other instances.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders or, with respect
to any Loan Combination, any related Non-Trust Loan Noteholder: (i) to cure any
ambiguity; (ii) to correct any error or to correct, modify or supplement any
provision herein which may be inconsistent with any other provision herein or
with the Prospectus; (iii) to add any other provisions with respect to matters
or questions arising hereunder which shall not be inconsistent with the
provisions hereof; (iv) to relax or eliminate any requirement hereunder imposed
by the REMIC Provisions if the REMIC Provisions are amended or clarified such
that any such requirement may be relaxed or eliminated; or (v) if such
amendment, as evidenced by an Opinion of Counsel (at the expense of the Trust
Fund, in the case of any amendment requested by the Master Servicer or Special
Servicer that protects or is in furtherance of the interests of the
Certificateholders, and otherwise at the expense of the party seeking such
amendment) delivered to the Master Servicer, the Special Servicer and the
Trustee, is advisable or reasonably necessary to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to any REMIC
Pool or Grantor Trust Y at least from the effective date of such amendment, or
would be necessary to avoid the occurrence of a prohibited transaction or to
reduce the incidence of any tax that would arise from any actions taken with
respect to the operation of any REMIC Pool or Grantor Trust Y; (vi) as provided
in Section 5.02(d)(iv), to modify, add to or eliminate any of the provisions of
Section 5.02(d)(i), (ii) or (iii); (vii) to modify Section 8.16, as contemplated
by Section 8.16(g); or (viii) to otherwise modify or delete any existing
provisions of this Agreement; provided that such action (except any amendment
described in clause (i), (ii), (v), (vi) or (vii) above) shall not, as evidenced
by an Opinion of Counsel (at the expense of the Trust Fund, in the case of any
amendment requested by the Master Servicer or Special Servicer that protects or
is in furtherance of the interests of the Certificateholders, and otherwise at
the expense of the party seeking such amendment) obtained by or delivered to the
Master Servicer, the Special Servicer and the Trustee, adversely affect in any
material respect the interests of any Certificateholder or, unless it consents
thereto, any third-party beneficiary of this Agreement identified in Section
11.08; and provided, further, that the Master Servicer, the Special Servicer and
the Trustee shall have first obtained from each Rating Agency written
confirmation that such amendment will not result in the qualification, downgrade
or withdrawal of the rating on any Class of Certificates; and provided, further,
that such amendment shall not significantly change the activities of the Trust
(insofar as such change would adversely affect the status of the Trust as a
"qualifying special-purpose entity" under FASB 140).
(b) This Agreement may also be amended from time to time by the
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least 51%
of the Voting Rights allocated to the affected Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments
253
received or advanced on Serviced Loans that are required to be distributed on
any Certificate without the consent of the Holder of such Certificate or that
are required to be distributed to any Non-Trust Loan Noteholder, without the
consent of such Non-Trust Loan Noteholder, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates or the
interests of any third-party beneficiary of this Agreement identified in Section
11.08 in a manner other than as described in the immediately preceding clause
(i) without the consent of the Holders of all Certificates of such Class or the
consent of such third-party beneficiary, as the case may be, (iii) modify the
provisions of this Section 11.01 without the consent of the Holders of all
Certificates then outstanding and the consent of each affected third-party
beneficiary of this Agreement identified in Section 11.08, (iv) modify the
provisions of Section 3.20 or the definition of Servicing Standard without the
consent of the Holders of Certificates entitled to all of the Voting Rights and
the consent of each affected Non-Trust Loan Noteholder, (v) modify the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any particular action pursuant to any provision
of this Agreement without the consent of the Holders of all Certificates then
outstanding, or (vi) significantly change the activities of the Trust (insofar
as such change would adversely affect the status of the Trust as a "qualifying
special-purpose entity" under FASB 140) without the consent of the Holders
entitled to at least 51% of all the Voting Rights (without regard to
Certificates held by the Depositor or any of the Depositor's Affiliates and/or
agents). Notwithstanding any other provision of this Agreement, for purposes of
the giving or withholding of consents pursuant to this Section 11.01,
Certificates registered in the name of the Depositor or any Affiliate of the
Depositor shall be entitled to the same Voting Rights with respect to matters
described above as they would if any other Person held such Certificates, so
long as neither the Depositor nor any of its Affiliates is performing servicing
duties with respect to any of the Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and, otherwise, at the expense of the party seeking such
amendment) to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on any
REMIC Pool pursuant to the REMIC Provisions or on Grantor Trust Y or cause any
REMIC Pool to fail to qualify as a REMIC or Grantor Trust Y to fail to qualify
as a grantor trust at any time that any Certificates are outstanding and (ii)
such amendment complies with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder, each Mortgage Loan Seller
and, to the extent known to the Trustee, each Non-Trust Loan Noteholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the Trustee
may but shall not be obligated to enter into any amendment pursuant to this
Section 11.01 that affects its rights, duties and immunities under this
Agreement or otherwise.
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(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Collection Account, any Loan Combination
Custodial Account (if not inconsistent with the related Co-Lender Agreement) or
the Distribution Account pursuant to Sections 3.05.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund or, to the
extent that it benefits one or more Non-Trust Loan Noteholders, such Non-Trust
Loan Noteholders, but only upon direction accompanied by an Opinion of Counsel
(the cost of which may be paid out of the Collection Account pursuant to Section
3.05(a) or, to the extent that it benefits one or more Non-Trust Loan
Noteholders, out of the related Loan Combination Custodial Account(s) pursuant
to Section 3.05(e), to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders and/or one or more
Non-Trust Loan Noteholders; provided, however, that the Trustee shall have no
obligation or responsibility to determine whether any such recordation of this
Agreement is required.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, 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 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor 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, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder (except as expressly provided for herein)
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement 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, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or
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proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable 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 indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements
negotiated, made and to be performed entirely in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, Citigroup
Commercial Mortgage Securities Inc., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, facsimile number: (000) 000-0000; (ii)
in the case of the Master Servicer, Midland Loan Services, Inc., 00000 Xxxxxx,
Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries) and X.X. Xxx 00000,
Xxxxxxx Xxxxxxx, Xxxxxx 00000 (for communications by U.S. mail), Attention:
President, facsimile number: (000) 000-0000; (iii) in the case of the Special
Servicer, X.X. Xxxxxx Company, Inc., 0000 Xxxxxx Xxxx., Xxxxx 0000, XxXxxx,
Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, facsimile number: (000) 000-0000,
with a copy to X.X. Xxxxxx Company, Inc., 00000 Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxxxx, facsimile number: (972)
692-5161; (iv) in the case of the Trustee, LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services--Citigroup Commercial Mortgage Trust 2006-C4,
facsimile number: (000) 000-0000; (v) in the case of the Underwriters, to each
of (A) Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, facsimile number: (000) 000-0000;
(B) Barclays Capital Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxxxxxx, facsimile number: (000) 000-0000; with a copy to Office of
the General Counsel, Attention: Xxxxx Xxxxxxxx, facsimile number: (212)
412-3040; (C) Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; Attention: Xxxxxx Xxxx, facsimile number: (000) 000-0000; (D) Banc of
America Securities LLC, NC1-027-22-03, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, facsimile number: (000) 000-0000; and
(E) PNC Capital Markets LLC, One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx, facsimile number: (000) 000-0000;
with a copy to Xxxxxxx Xxxxxxxx, facsimile number: (000) 000-0000; (vi) in the
case of the Rating Agencies, (A) Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance Group; and (B)
Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Surveillance; and (vii) in the case
256
of the initial Controlling Class Representative, JER Investors Trust Inc. c/o
X.X. Xxxxxx Company, Inc., 0000 Xxxxxx Xxxx., Xxxxx 0000, XxXxxx, Xxxxxxxx
00000, Attention: Xxxxx X. Xxxxxxx, facsimile number: (000) 000-0000, with a
copy to X.X. Xxxxxx Company, Inc., 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxxxx, facsimile number: (972)
692-5161; or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
SECTION 11.06 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 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 11.07 Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Mortgage
Loans pursuant to this Agreement shall constitute a sale and not a pledge of
security for a loan. If such conveyance is deemed to be a pledge of security for
a loan, however, the Depositor and the Trustee agree that it is their intent
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor and the Trustee also
intend and agree that, in such event, the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
the Depositor's entire right, title and interest in and to the assets
constituting the Trust Fund.
SECTION 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third-party beneficiary hereof without its consent. No other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement; provided that
each Non-Trust Loan Noteholder is an intended third-party beneficiary hereunder
with respect to those provisions of this Agreement that affect its interest in
the related Loan Combination and its rights under the related Co-Lender
Agreement, and each Mortgage Loan Seller is an intended third-party beneficiary
hereunder with respect to those provisions of this Agreement that affect its
rights and obligations under the related Mortgage Loan Purchase Agreement.
SECTION 11.09 Article and Section Headings.
The article and Section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
257
SECTION 11.10 Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
and the Controlling Class Representative (and, if affected thereby, any
Non-Trust Loan Noteholder known to the Trustee) with respect to each of the
following of which it 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 resignation or termination of the Trustee, a Fiscal
Agent, the Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by any of the Mortgage Loan
Sellers pursuant to the applicable Mortgage Loan Purchase Agreement;
(v) any change in the location of the Distribution Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO
Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency (and, if affected thereby, any Non-Trust Loan Noteholder) with respect to
each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee or a Fiscal Agent;
and
(ii) any change in the location of the Collection Account or a
Loan Combination Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency and the
Controlling Class Representative (and, with respect to a Loan Combination, the
related Non-Trust Loan Noteholder(s)) with respect to a non-performing or
defaulted Serviced Loan such information as the Rating Agency or Controlling
Class Representative (and, with respect to a Loan Combination, the related
Non-Trust Loan Noteholder(s)) shall reasonably request and which the Special
Servicer can reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14;
(iii) any Officer's Certificate delivered to the Trustee pursuant
to Section 4.03(c) or 3.08(a); and
258
(iv) each of the reports described in Section 3.12(a) and the
statements and reports described in Sections 3.12(b), 3.12(c) and 3.12(d).
(e) The Trustee shall (i) make available to each Rating Agency and the
Controlling Class Representative, upon reasonable notice, the items described in
Section 3.15(a) and (ii) promptly deliver to each Rating Agency and the
Controlling Class Representative a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Master Servicer and the Special Servicer
shall provide to each Rating Agency such other information with respect to the
Mortgage Loans and the Certificates, to the extent such party possesses such
information, as such Rating Agency shall reasonably request.
(g) Notwithstanding any provision herein to the contrary each of the
Master Servicer, the Special Servicer or the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request.
SECTION 11.11 Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
259
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
Depositor
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.
Master Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
X.X. XXXXXX COMPANY, INC.
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of June 2006, before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxx, known to me to be a Vice President
of CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF KANSAS )
) ss.:
COUNTY OF XXXXXXX )
On the 23rd day of June 2006, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a Senior
Vice President of MIDLAND LOAN SERVICES, INC., one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF VIRGINIA )
) ss.:
COUNTY OF FAIRFAX )
On the 26th day of June 2006, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxxxx, known to me to be a Managing
Director of X.X. XXXXXX COMPANY, INC., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 28th day of June 2006, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx, known to me to be a First Vice
President of LASALLE BANK NATIONAL ASSOCIATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
----------------------------------------
Notary Public
[Notarial Seal]
SCHEDULE I
MORTGAGE LOAN SCHEDULE
I-1
MORTGAGE LOAN GROUP
LOAN NUMBER LOAN SELLER NUMBER LOAN / PROPERTY NAME
-------------------------------------------------------------------------------------------------
1 CGM and BCRE 1 ShopKo Portfolio
1.1 00000 Xxxxx 000xx Xxxxxx
1.2 000 Xxxxxxx Xxx
1.3 0000 Xxxxxxxx Xxxxx
1.4 000 Xxx Xxxx Xxxxxx
0.0 00 Xxxx Xxxxxxxxx
1.6 000 Xxxx Xxxxxxxx Xxxxx
1.7 0000 Xxxx Xxxxx Xxxx
1.8 000 Xxxx Xxxxxxx Xxxxxxxx (Xxxxxxx 53)
1.9 0000 Xxxxxx Xxxxxx Xxxxx (Xxxxxxx 23)
1.10 0000 Xxxxxxx Xxxxx Xxxx
1.11 0000 Xxxx Xxxxxxxxx Xxxxxx
1.12 0000 Xxxxx Xxxx
1.13 0000 Xxxxxxx Xxxxxx
1.14 0000 Xxxxxxx 00 Xxxxx
1.15 0000 Xxxxxxx 00 Xxxxx
1.16 0000 Xxxxxxxx Xxxxxx
1.17 0000 Xxxx Xxxxx Xxxxxx
1.18 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
1.19 00000 Xxxx Xxxxxx Xxxx
1.20 0000 Xxxxx 00xx Xxxxxx
1.21 000 Xxxx Xxxxxxx Xxxxxx
1.22 0000 Xxxx Xxxxxxxxxx Xxxxxx
1.23 0000 Xxxx 00xx Xxxxxx
1.24 0000 Xxxxxx Xxxxxx
1.25 000 Xxxxx Xxx Xxxx
1.26 000 Xxxx Xxxxxxxxxx Xxxxxx
1.27 0000 Xxxx Xxxxxxxxx Xxxxxxxxxx
1.28 0000 Xxxxx Xxxxxxx Xxxxxx
1.29 0000 Xxxxxxx Xxxxxx
1.30 000 Xxxx Xxxx Xxxxxx
1.31 North 0000 Xxxxxxx Xxxxxxx
1.32 0000 Xxxxxxxxxx Xxxxxx
1.33 0000 Xxxxx Xxxxx Xxxxxx
1.34 0000 Xxxxx Xxxxxxx Xxxxxx
1.35 0000 XX Xxxxxxx 00
1.36 0000 00xx Xxxxxx Xxxxxxxxx
1.37 000 Xxxxxxx 00 Xxxxxxxxx
1.38 0000 Xxx Xxxxxxx Xxxxxxxxx
1.39 0000 Xxxx Xxxxxxxx
1.40 0000 Xxxxx Xxxx Xxxx
1.41 0000 00xx Xxxxxx
1.42 000 Xxxxx 00xx Xxxxxx Xxxx
1.43 000 Xxxxx Xxxxxx Xxxxxx
1.44 0000 Xxxx Xxxxxx Xxxxxx
1.45 0000 Xxxxx 00xx Xxxxxx
1.46 0000 Xxxxx Xxxx Xxxxxx
1.47 0000 Xxxxxxxx Xxxx
1.48 0000 Xxxxxxx Xxxxxx
1.49 0000 Xxxxx Xxxxxxx 16
1.50 2602 Shopko Drive
1.51 000 Xxxxx Xxxxxx Xxxxx
1.52 0000 Xxxx 0000 Xxxxx
1.53 0000 Xxxxx 0000 Xxxx
1.54 000 Xxxxxxxxxx Xxxxx
1.55 0000 Xxxxxx Xxxx Xxxxxx
1.56 0000 Xxxxx Xxxx Xxxxxx
1.57 0000 Xxxxxxxxx Xxxxxx
1.58 0000 Xxxxxx Xxxxxx Xxxx (Xxxxx Xxxxxxx 00)
1.59 0000 Xxxxx Xxxxx
1.60 0000 Xxxxx Xxxxxxx Xxxx Xxxx
1.61 000 Xxxxx Xxxxxxxxx Xxxxxx
1.62 0000 Xxxxxxx Xxxxxx
1.63 000 0xx Xxxxxx Xxxxxxxxx
1.64 0000 Xxxx Xxxxx Xxxxxx
1.65 0000 Xxxx Xxxxxx (State Highway 10)
1.66 000 Xxxx Xxxxxx
1.67 000 Xxxxx 000 Xxxx
1.68 000 Xxxxx Xxxxxxx 281
1.69 000 Xxxxxxxxx Xxxxxx
1.70 0000 Xxxxx Xxxxxxx Xxxxxx
1.71 South 0000 Xxxxx Xxxxxx
1.72 000 Xxxxx Xxxxxxxxx Xxxxxx
1.73 0000 Xxxxxxxxx Xxxx
1.74 000 Xxxxx Xxxxxx
1.75 0000 Xxxxx Xxxx Xxxxxx
1.76 0000 Xxxxxxxx Xxxxxx
1.77 0000 Xxxx 0000 Xxxxx
1.78 0000 Xxxxx Xxxxxxx 00 (Xxxxx Xxxxxx)
1.79 0000 Xxxx Xxxxxx Xxxxxx
1.80 000 Xxxxxx Xxxx Xxxxx
1.81 0000 Xxxxxxxxxx Xxxxxxxxx
1.82 0000 Xxxxxxx Xxxx
1.83 000 Xxxx 0xx Xxxxxx
1.84 0000 Xxxxx Xxxxxx Xxxxxx
1.85 0000 Xxxxxxxx Xxxxx
1.86 000 Xxxx Xxxxxx Xxxxxx
1.87 0000 Xxxxx Xxxxxx Xxxxx
1.88 0000 Xxxxx Xxxxxxxx Xxxxxx
1.89 0000 Xxxxxxxx Xxxxxxxxx
1.90 000 Xxxx Xxxxxxxx Xxxxx
1.91 0000 Xxxxxxxxx Xxxxxx
1.92 0000 Xxxxx Xxxxxxxxxx Xxxxxxx
1.93 0000 Xxxx Xxxx Xxxx Xxxx
1.94 000 Xxxxxx Xxxx O
1.95 0000 Xxxxxxxxxxx Xxxxxxx
1.96 000 Xxxx 00xx Xxxxxx
1.97 0000 Xxxxx Xxxxxx Xxxxxx
1.98 0000 Xxxx Xxxxxx
1.99 0000 Xxxxxx Xxxx
1.100 000 Xxxx Xxxxx Xxxxxx
1.101 000 Xxxxx Xxxx Xxxxxx
1.102 0000 Xxxxx Xxxx Xxxxxx
1.103 000 Xxxxx Xxxx Xxxxxx
1.104 0000 Xxxxxxxxxx Xxxxxx
1.105 2120 Thain Grade
1.106 0000 Xxxxxx Xxxx
1.107 0000 Xxxxxxxxx Xxxx
1.108 0000 Xxxxx 0xx Xxxxxx
1.109 0000 Xxxx Xxxx Xxxxxx
1.110 East 00000 Xxxxxxx Xxxxxx
1.111 000 Xxxxx Xxxxxxxxx Xxxxxx
1.112 0000 Xxxxx Xxxxxxxxx Xxxxxx
2 CGM 1 Xxxx Pointe Brea Office Park
3 CGM 1 Reston Executive Center
4 CGM 1 Reckson II Office Portfolio
4.1 6800 Jericho
4.2 00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx
4.3 000 Xxxxx Xxxxxx Xxxx
4.4 000 Xxxxx Xxxxxx Xxxx
4.5 000 Xxxxxxxxxxx Xxxx
4.6 00 Xxxxxx Xxxxxx
4.7 North Atrium II
5 CGM 1 Great Wolf Resorts Portfolio
5.1 Great Wolf Resort - Sandusky, OH
5.2 Great Wolf Resort - Wisconsin Dells
6 PNC 2 Emerald Isle Senior Apartments
7 CGM 1 20 North Orange
Kratsa Portfolio
8 CGM 1 SpringHill Suites - North Shore
9 CGM 1 Holiday Inn Express - South Side
10 CGM 1 Holiday Inn Express - Bridgeville
11 CGM 1 Comfort Inn - Meadowlands
GT Portfolio
12 CGM 0 Xxxx Xxxx 300
13 CGM 1 JCG III
14 CGM 1 Liberty Business Park
15 CGM 0 Xxxx Xxxx 80
16 CGM 1 JCG V
17 CGM 1 6100 Center
18 CGM 1 Xxxxxxx Terrace
19 CGM 1 JCG IV
20 PNC 1 Flower Hill Promenade
21 PNC 1 Bank of America Plaza
22 CGM 2 Woodstream Apartments
23 CGM 1 XxXxxx Mall
24 CGM 1 Xxxxxxxxx Xxxxx
00 XXX 0 Xxxxxxxx Xxxx Center
26 CGM 1 Northeast Florida Industrial
27 CGM 2 Bristol Pointe Apartment Homes
28 CGM 1 Sweet Bay Shopping Center
29 CGM 1 Bossier Corners
30 CGM 2 Mallard Crossing Apartments
31 CGM 1 Plaza at the Pointe
32 CGM 2 Treetops Apartments
33 CGM 0 Xxxxx Xxxxx
34 CGM 1 Milestone
35 CGM 1 000 Xxxxxxx Xxxx
36 CGM 1 Virginia Gateway
37 PNC 1 Logistics Insight Corporation
38 CGM 1 The Sterling and Xxxxxx Xxxxx Building
39 CGM 2 Wolf Creek Apartments
40 CGM 1 Party City
41 CGM 1 Xxxxxxx Health Park
42 CGM 1 Xxxxxxx Xxxxxxx'x Holiday Inn
43 CGM 1 Acme Plaza Shopping Center I (Xxxxxxx)
44 CGM 1 AmeriCold Warehouse
45 CGM 2 Promontory Apartments
46 CGM 1 Doubletree Suites - Tukwila, WA
47 CGM 0 Xxxxxx Xxxxxx Xxx - Xxxx Xxxxx, XX
48 CGM 1 Desert Inn Office Center
49 CGM 2 Hidden Valley Club Apartments
50 CGM 1 Wal-Mart Fremont
51 CGM 2 Four Winds Apartments
Beau Rivage Portfolio
52 CGM 2 Beau Rivage Apartments 192
53 CGM 2 Beau Rivage Apartments 132
54 CGM 1 Mendocino Marketplace
55 CGM 1 00 Xxxxxxxx Xxxx
56 PNC 1 Northbelt Office Center II
57 CGM 1 0000 Xxxxxx Xxxxxx
58 PNC 1 Cingular Wireless Building
59 CGM 1 Xxxxxxxxxx Center
Curat Multifamily Portfolio
60 CGM 2 Autumnwood Apartments
61 CGM 2 Silvercreek Apartments
62 CGM 2 Hilands II Apartments
63 PNC 2 Houston Levee Apartments
64 CGM 2 Xxxxxxx Apartments
65 CGM 1 Marriott Fairfield Inn & Suites Alpharetta Portfolio
65.1 Marriot TownePlace Xxxxxx
00.0 Xxxxxxxxx Xxx & Xxxxxx - Xxxxxxxxxx, XX
65.3 Xxxxxxxx Xxxxxxxxx Xxx & Xxxxxx - Xxxxx, XX
66 PNC 1 Pac Xxxx Directory Office Building
67 PNC 1 Rancho Santa Fe
68 CGM 1 Whole Foods
69 CGM 1 State & Perryville Shopping Center
70 CGM 2 Stonehenge Apartments
70.1 Starkville Crossing
70.2 Stonehenge Apts
71 CGM 1 0000-0000 Xxxxxxxxxx Xxxxxx
72 CGM 0 Xxxxxxx Xxxxx
73 CGM 0 Xxxxxxxxxxxx Xxxxxxx Xxxxxx
00 XXX 0 Xxxxxxxx Xxxxxxxxx Xxx & Xxxxxx Xxxxxxxx Portfolio
74.1 Xxxxxxxxx Xxx & Xxxxxx - Xxxxxxx (Xxxxxxxx), XX
74.2 SpringHill Suites Atlanta/ Alpharetta
75 CGM 0 Xxxxxxxx Xxxxxxxxx Xxx & Xxxxxx Xxxxxxx Portfolio
75.1 Marriott Fairfield Inn & Suites - Atlanta/Perimeter Center
75.2 Marriott TownePlace Suites
76 CGM 1 One Xxxxxx Road
77 CGM 1 Washingtonian Center
78 CGM 1 WalMart Supercenter - Dahlonega, GA
79 CGM 0 Xxxxxxx Xxxxxx Shopping Center
80 CGM 1 Prestige Portfolio I
81 CGM 1 Sav-A-Center - Metairie, LA
82 CGM 1 Natchez Mall
83 CGM 1 Courtyard by Marriott - Huntersville, NC
84 CGM 1 The Minolta Building
85 PNC 1 Itronix Building
86 CGM 1 Alfa Laval Building
87 PNC 1 Miami Lakes Commons
88 PNC 1 Gateway West Shopping Center
89 CGM 1 KingsPark
90 PNC 2 Berkley Village - Newport News
91 CGM 1 00 Xxxxxxxx Xxxxxx
92 CGM 0 Xxxxxxxxx Xxxxxxx
00 XXX 0 Xxxxxxxxxx Xxxxxxxx Xxxx
94 CGM 1 Franklin Center Office Building
95 CGM 1 Aurora - Xxxxxxxxx Medical Clinic(Hartland)
96 CGM 1 5 & 000 Xxxxxxx Xxxx
97 CGM 1 Walgreen's- Henderson, NV
98 PNC 0 Xxxxxxxxx Xxxxx Apartments
99 PNC 1 Holiday Inn Express - Turlock
100 CGM 1 Oglethorpe Crossing
101 CGM 2 Spring Meadow Apartments
102 CGM 0 Xxxxxx Xxxxxx
103 CGM 0 Xxxxxxx Xxxxxx Xxxxxx Xxxxxx
000 XXX 0 Xxxxxxx Xxxxxx Office Buildings
105 PNC 1 00 Xxxx Xxxxxx
106 CGM 2 Regency at Xxxxxxxx Park
107 CGM 1 Aurora - Xxxxxxxx Health Center
108 CGM 1 Spalding Triangle
109 PNC 1 Hotel Bethlehem
110 CGM 1 0000 Xxxxxxxx Xxxx
111 PNC 2 Chaparral Townhomes
112 CGM 1 La Quinta Inn Winter Park
113 PNC 1 Bolsa Magnolia Center
114 CGM 2 Apple Creek Apartments
115 CGM 2 Millport Apartments
116 CGM 1 Xxxxxx Marketplace
117 CGM 1 Village Green MHP
118 CGM 0 Xxxxxx Xxxx Xxxxx
119 CGM 1 Holiday Inn - Lumberton, NC
120 CGM 1 Andover Business Center
121 CGM 2 Crystal Lake Apartments
122 CGM 1 Aurora - Bluemond Health Xxxxxx
000 XXX 0 Xxxxxx Xxxxx Xxxxx
X0 Portfolio
124 CGM 0 Xxxxxx Xxxxxxxxxxx - Xxxxxxx, XX
125 CGM 1 Advance Auto Parts - Cleveland, OH
126 CGM 1 Advance Auto Parts - Xxxxxx Township, MI
127 PNC 1 Xxxxxxx Xxxxxxx
000 XXX 0 Xxxxxxxx Xxxxx
129 CGM 2 Kipling Manor Apartments
130 PNC 1 McCarran Landing Shopping Center
131 CGM 1 Barcelone Building
132 CGM 1 Cypress Grove Plaza
133 CGM 1 Holiday Inn Express - Mooresville
134 PNC 2 Xxxxxxx Oaks Apartments & Apple Mini Storage
135 CGM 1 Aurora - Airport Health Xxxxxx
000 XXX 0 XXX Xxxxx
137 CGM 0 Xxxxxxxxx Xxx - Xxxxxx Xxxxx, XX
138 CGM 2 Willow Creek
139 CGM 0 Xxxxxxx Xxxxxx
140 CGM 1 Prestige Portfolio II
141 CGM 1 Circuit City - Redding, CA
142 CGM 0 Xxxxxx Xxxxxxxxxxx - Xxxxxxxxx, XX
143 CGM 0 Xxxxx Xxxxxx Apartments
144 CGM 1 Holiday Inn Express - Myrtle Beach, SC
145 PNC 0 Xxxxxxx Xxx & Xxxxxx - Xxxxxxx Xxxx
146 PNC 0 Xxxxxxx Xxxxx - X. Xxx Xxxxx
147 CGM 1 Walgreen's - Orange, CT
148 CGM 1 Bird in Hand
149 CGM 1 GSA - Mission Viejo, CA
150 CGM 1 Xxxxxx and Xxxxx
151 CGM 1 Best Buy-Portage
152 CGM 1 Xxxxxxx Creek Medical Building
153 CGM 1 Pasco Rite Aid
154 CGM 1 Mill & Main
155 CGM 1 CVS - Port Xxxxxx, FL
156 CGM 1 Shoppes at Cranberry Commons
157 CGM 1 Xxxxxx North (Marin) Office
158 PNC 1 Hayden Park Office
159 PNC 2 Xxxxxxxx Mayfair Apartments
160 CGM 1 000 Xxxxxxxx Xxxxx
161 CGM 1 Best Buy - Fond du Lac, WI
162 PNC 2 Park Westwood Apartments
163 CGM 1 Rite Aid - Louisville, KY
164 CGM 1 Rite Aid - Manchester, PA
165 CGM 1 Rite Aid - Lancaster, PA
166 PNC 2 Mayfair Village Apartments
LOAN NUMBER PROPERTY ADDRESS CITY STATE ZIP CODE
--------------------------------------------------------------------------------------------------------------------------------
1 Various Various Various Various
1.1 00000 Xxxxx 000xx Xxxxxx Xxxxx XX 00000
1.2 000 Xxxxxxx Xxx Xxxxx Xxx XX 00000
1.3 0000 Xxxxxxxx Xxxxx Xx Xxxx XX 00000
1.4 000 Xxx Xxxx Xxxxxx Xxxxxxxxxxx XX 00000
1.5 00 Xxxx Xxxxxxxxx Xxxxxxx XX 00000
1.6 000 Xxxx Xxxxxxxx Xxxxx Xxxxx X'Xxxxx XX 00000
1.7 0000 Xxxx Xxxxx Xxxx Xxxxx XX 00000
1.8 000 Xxxx Xxxxxxx Xxxxxxxx (Xxxxxxx 00) Xxxxxx XX 00000
1.9 0000 Xxxxxx Xxxxxx Xxxxx (Xxxxxxx 00) Xxxxx Xxxxx XX 00000
1.10 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxx XX 00000
1.11 0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000
1.12 0000 Xxxxx Xxxx Xxxxxxx XX 00000
1.13 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
1.14 0000 Xxxxxxx 00 Xxxxx Xxxxxxxxx XX 00000
1.15 0000 Xxxxxxx 00 Xxxxx Xxxxxxxxx XX 00000
1.16 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
1.17 0000 Xxxx Xxxxx Xxxxxx Xxxxx Xxx XX 00000
1.18 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
1.19 00000 Xxxx Xxxxxx Xxxx Xxxxx XX 00000
1.20 0000 Xxxxx 00xx Xxxxxx Xxxxx XX 00000
1.21 000 Xxxx Xxxxxxx Xxxxxx Xxxx xx Xxx XX 00000
1.22 0000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
1.23 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxx XX 00000
1.24 0000 Xxxxxx Xxxxxx Xxxxx Xxxx XX 00000
1.25 000 Xxxxx Xxx Xxxx Xxxxxx XX 00000
1.26 000 Xxxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxx XX 00000
1.27 0000 Xxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000
1.28 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
1.29 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
1.30 000 Xxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
1.31 North 0000 Xxxxxxx Xxxxxxx Xxxxxxx XX 00000
1.32 0000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
1.33 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000
1.34 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
1.35 0000 XX Xxxxxxx 00 Xxxxxxxxxx XX 00000
1.36 0000 00xx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000
1.37 000 Xxxxxxx 00 Xxxxxxxxx Xxxxx Xxxxx XX 00000
1.38 0000 Xxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
1.39 0000 Xxxx Xxxxxxxx Xxxxxx XX 00000
1.40 0000 Xxxxx Xxxx Xxxx Xxxxx Xxxxxx XX 00000
1.41 0000 00xx Xxxxxx Xxxxxxx XX 00000
1.42 000 Xxxxx 00xx Xxxxxx Xxxx Xxxxxxxx XX 00000
1.43 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
1.44 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
1.45 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX 00000
1.46 0000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx XX 00000
1.47 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000
1.48 0000 Xxxxxxx Xxxxxx Xxxxxx XX 00000
1.49 0000 Xxxxx Xxxxxxx 00 Xxxxxxxx XX 00000
1.50 0000 Xxxxxx Xxxxx Xxxxxxx XX 00000
1.51 000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000
1.52 0000 Xxxx 0000 Xxxxx Xxxx Xxxxxx XX 00000
1.53 0000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx XX 00000
1.54 000 Xxxxxxxxxx Xxxxx Xxxxxx XX 00000
1.55 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx XX 00000
1.56 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
1.57 0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000
1.58 0000 Xxxxxx Xxxxxx Xxxx (Xxxxx Xxxxxxx 00) Xx Xxxxxx XX 00000
1.59 0000 Xxxxx Xxxxx Xxxxxxxx XX 00000
1.60 0000 Xxxxx Xxxxxxx Xxxx Xxxx Xxxxxxxx Xxxxx XX 00000
1.61 000 Xxxxx Xxxxxxxxx Xxxxxx Xx Xxxx XX 00000
1.62 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
1.63 000 0xx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
1.64 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
1.65 0000 Xxxx Xxxxxx (Xxxxx Xxxxxxx 00) Xxxxxxx Xxxxx XX 00000
1.66 000 Xxxx Xxxxxx Xxxxxxxxxx XX 00000
1.67 000 Xxxxx 000 Xxxx Xxxx Xxxxxxxxx XX 00000
1.68 000 Xxxxx Xxxxxxx 000 Xxxxxxxx XX 00000
1.69 000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
1.70 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx XX 00000
1.71 South 0000 Xxxxx Xxxxxx Xxxxxxx XX 00000
1.72 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
1.73 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
1.74 000 Xxxxx Xxxxxx Xxxxx Xxxx XX 00000
1.75 0000 Xxxxx Xxxx Xxxxxx Xxxxxx XX 00000
1.76 0000 Xxxxxxxx Xxxxxx Xxxxx XX 00000
1.77 0000 Xxxx 0000 Xxxxx Xxxx Xxxxxx Xxxx XX 00000
1.78 0000 Xxxxx Xxxxxxx 00 (Xxxxx Xxxxxx) Xxxxxxxx XX 00000
1.79 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
1.80 000 Xxxxxx Xxxx Xxxxx Xxxxxxxx XX 00000
1.81 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxx XX 00000
1.82 0000 Xxxxxxx Xxxx Xxxxx Xxxxx XX 00000
1.83 000 Xxxx 0xx Xxxxxx Xxxxxx XX 00000
1.84 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx Xxx XX 00000
1.85 0000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
1.86 000 Xxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
1.87 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000
1.88 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
1.89 0000 Xxxxxxxx Xxxxxxxxx Xxxxx XX 00000
1.90 000 Xxxx Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
1.91 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
1.92 0000 Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxx XX 00000
1.93 0000 Xxxx Xxxx Xxxx Xxxx Xxxx Xxxxx XX 00000
1.94 000 Xxxxxx Xxxx X Xxxx Xxxx XX 00000
1.95 0000 Xxxxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
1.96 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxx XX 00000
1.97 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx XX 00000
1.98 0000 Xxxx Xxxxxx Xxxxx Xxxxx XX 00000
1.99 0000 Xxxxxx Xxxx Xxxxx Xxx XX 00000
1.100 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
1.101 000 Xxxxx Xxxx Xxxxxx Xxxxxxx Xxxx XX 00000
1.102 0000 Xxxxx Xxxx Xxxxxx Xxxxx XX 00000
1.103 000 Xxxxx Xxxx Xxxxxx Xxxxxxx Xxxx XX 00000
1.104 0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
1.105 0000 Xxxxx Xxxxx Xxxxxxxx XX 00000
1.106 0000 Xxxxxx Xxxx Xxxxxxxxx XX 00000
1.107 0000 Xxxxxxxxx Xxxx Xxxxxx XX 00000
1.108 0000 Xxxxx 0xx Xxxxxx Xxxxxxxx XX 00000
1.109 0000 Xxxx Xxxx Xxxxxx Xx Xxxx XX 00000
1.110 East 00000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx XX 00000
1.111 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
1.112 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
2 1, 2, 3, 4, 6, 20, 30, 40, 50, 00 Xxxxxx Xxxxx Xxxx XX 00000
3 12100-12120 Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000
4 Various Various Various Various
4.1 0000 Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000
4.2 00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
4.3 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000
4.4 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000
4.5 000 Xxxxxxxxxxx Xxxx Xxxxxxxx XX 00000
4.6 00 Xxxxxx Xxxxxx Xxxx Xxxxxx XX 00000
4.7 0000 Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000
5 Various Various Various Various
5.1 0000 Xxxxx Xxxx Xxxxxxxx XX 00000
5.2 0000 Xxxxx Xxxx Xxxxx Xxxx Xxxxxx XX 00000
6 000 Xxxxx Xxxx Xxxxx Xxxxxxxxx XX 00000
7 00 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
8 000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
9 00 Xxxxx 00xx Xxxxxx Xxxxxxxxxx XX 00000
10 0000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxxxx XX 00000
11 000 Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
12 000 Xxxxx Xxxx Xxxx Xxxxx XX 00000
13 314, 315, 400, 000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000
14 6401 & 0000 Xxxxx Xxx Xxxxx Xxxxxxxxx Xxxxxxxx Xxxx XX 00000
15 000 Xxxxx Xxxx Xxxx Xxxxx XX 00000
16 00000 Xxxxxxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000
17 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxx XX 00000
18 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000
19 0000 Xxxx Xxxx Xxxxxx Xxxxxxxx Xxxx XX 00000
20 2610-2750 Xxx xx xx Xxxxx Xxx Xxx XX 00000
21 0000 Xxxx Xxxxxx Xxxxxxxx XX 00000
22 000 Xxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
23 000 Xxxxxxx Xxxx XxXxxx XX 00000
24 000 Xxxxx Xxx Xxxxxx Xxxxxxxxx XX 00000
25 0000-0000 Xxxx Xxxxx Xxxxxxx Xxxx Xxxxxx XX 00000
26 0000 X.X.Xxxx Xxxxxxxxx Xxxxx Xxxx Xxxxxxx XX 00000
27 0000 Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
28 00000 Xxxx Xxxxx Xxxx Xxxxx XX 00000
29 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxx XX 00000
30 0000 Xxxxxxx Xxx Xxxxxxxx XX 00000
31 000 Xxxxx Xxxxx Xxxxxxxxxx XX 00000
32 000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000
33 111, 140 & 000 Xxxxx Xxxxx Xxxxxxxxxxx XX 00000
34 21030, 21040, 20900 & 00000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
35 000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000
36 0000-0000 Xxxxxx Xxxx Xxxx Xxxxxxxxxxx XX 00000
37 0000 Xxxxxxxxxxx Xxxxx Xxxxx XX 00000
38 1402 & 0000 Xxxxx Xxxxxx Xxxxxxx XX 00000
39 000 Xxxx Xxxxx Xxxxxx Xxxxxxx XX 00000
40 00 Xxxxx Xxxx Xxxx Xxxxxxxx XX 00000
41 11121-11181 Health Xxxx Xxxxxxxxx Xxxxxx XX 00000
42 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000
43 00 Xxxxxx Xxxx Xxxx May Xxxxx Xxxxx XX 00000
44 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
45 00 Xxxx Xxxxx Xxxx Xxxxxx XX 00000
46 00000 Xxxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
47 0000 Xxx Xxxx Xxxx Xxxxx XX 00000
48 2725, 2755, 2785, 0000 Xxxx Xxxxxx Xxx Xxxx Xxx Xxxxx XX 00000
49 000 Xxxxxx Xxxxxx Xxxx Xxxxx Xxx Xxxxx XX 00000
50 00000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
51 0000 Xxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000
52 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000
53 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000
54 2240, 2280, 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxx XX 00000
55 00 Xxxxxxxx Xxxx Xxxxxxx XX 00000
56 000 Xxxxxx Xxxxxxx Xxxxxxx XX 00000
57 0000-00 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
58 0000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx XX 00000
59 1512-1530 Demonbreun, 000-000 00xx Xxxxxx, 0000-0000 XxXxxxxx Xxxxxx Xxxxxxxxx XX 00000
60 000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
61 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
62 0000 Xxxx Xxxxx Xxxx Xxxxxx XX 00000
63 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxx XX 00000
64 0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000
65 Various Various GA Various
65.1 0000 Xxxx Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000
65.2 00000 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
65.3 0000 Xxxxxxxx Xxxxx Xxxxx XX 00000
66 0000 Xxxx Xx Xxxxx Xxxxxx Xxxxxxx XX 00000
67 13055, 13065, 00000 Xxxx Xxxxxx Xxxxx Xx Xxxxxxxxx Xxxxxxxx XX 00000
68 28 & 00 Xxxxxxx Xxxx Xxxx Xxxxxxxx XX 00000
69 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
70 Various Xxxxxxxxxx XX 00000
70.1 000-000 Xxxx Xxxxxx Xxxxxx, 301-509 Xxxxxxx Xxxx, 101-123 Xxxxxxxx Street,
000-000 Xxxx Xxxxxx Xxxx and 000-000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
70.2 000 Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
71 0000-0000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
72 0000 Xxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
73 0000 Xxxxxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
74 Various Various GA Various
74.1 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000
74.2 00000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
75 Various Various GA Various
75.1 0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000
75.2 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
00 Xxx Xxxxxx Xxxx Xxx XX 00000
77 0000 Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000
78 000 Xxx-Xxxx Xxx Xxxxxxxxx XX 00000
79 000 Xxxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxxx XX 00000
80 88 and 00 Xxxxxxxx Xxxx Xxxxxx, 000, 130 and 000 Xxxxxxxx Xxxx Xxxx
and 000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
81 000 Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
82 000 Xxxx X. Xxxxxx Xxxxx Xxxxxxx XX 00000
83 00000 Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
84 000 Xxxxx 000 Xxxxxxxx XX 00000
85 00000 Xxxx Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx XX 00000
86 0000 Xxxxxxxxxxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000
87 0000 Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx XX 00000
00 Xxxxx 0 @ Xxxxxxxxx Xxxx Xxxxx XX 00000
89 0000 Xxxx Xxxxx Xxxxxxx Xxxxx XX 00000
90 000 Xxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000
91 00 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
92 000-000 Xxxxxx Xxxx Xxxxxxx XX 00000
93 16110-16140 Xxxxxxxxxxx-Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
94 00000 Xxxxxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
95 000 Xxxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000
96 5 & 000 Xxxxxxx Xxxx Xxxxxx XX 00000
97 000 Xxxx Xxxx Xxxx Xxxxxxx Xxxxxxxxx XX 00000
98 0000 Xxxx 00xx Xxxxxx Xxxxx XX 00000
99 0000 Xxxxx Xxxxx Xxxxxxx XX 00000
100 0000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxx XX 00000
101 00000 Xxxxx 00xx Xxxxxx Xxxxxxxx XX 00000
102 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
103 0000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxx XX 00000
104 00-00 Xxxx Xxxxxx, 000 and 00 Xxxx Xxxxxx Xxxxxxxx XX 00000
105 00 Xxxx Xxxxxx Xxxxxxxxx XX 00000
106 000 Xxxxxxxx Xxxx Xxxxx XX 00000
107 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
108 5255,5275 & 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
109 000 Xxxx Xxxxxx Xxxxxxxxx XX 00000
110 0000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000
111 000 Xxxxxxxxx Xxxx Xxxxx XX 00000
112 000 Xxx Xxxx Xxxxxxx XX 00000
113 0000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
114 0000 Xxxxxxxx Xxx Xxxx Xxxxxx XX 00000
115 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
116 11001-11061 Xxxxx Xxxxxx Xxxx Xxxxxx XX 00000
117 0000 Xxxxxxx Xxxx Xxxxx Xxxxx XX 00000
118 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000
119 000 Xxxxxxxxxxx Xxxxx Xxxxxxxxx XX 00000
120 46979 and 00000 Xxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx XX 00000
121 00000 Xxxxx Xxxx 00xx Xxxxxx Xxxxxxxxx XX 00000
122 00000 Xxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000
123 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000
124 0000 00xx Xxxxxx Xxxxxxx XX 00000
125 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
126 0000 Xxxx Xxxxxxxx Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
127 0000-0000 Xxxxxxx Xxxx and 00-00 Xxxxxxxx Xxx'x Xxxxxx XX 00000
128 0000 Xxxxxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
129 00-00 Xxx Xxxxx Xxxxxxx XX 00000
130 0000-0000 Xxxxxxx Xxxx Xxxx XX 00000
131 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx Xxx Xxxxx XX 00000
132 5622-5692 Xxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
133 000 Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
134 0000 Xxxxxxx Xxxxxx Xxxxxx XX 00000
135 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
136 0000 Xxxx Xxxxxxxxx Xx. Xxxxx XX 00000
137 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx XX 00000
138 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
139 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxx XX 00000
000 000-000 Xxxxxxxx Xxxx Xxxx, 000-000 Xxxxxxxx Xxxx Xxxx Xxxx Xxxxxxxx XX 00000
141 0000 Xxxx Xxxxx Xxxxxxx XX 00000
142 0000-0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
143 000-000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
144 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx XX 00000
145 0000 Xxx Xxxxxxxx Xxxxxxx Xxxxxxx Xxxx XX 00000
146 1306 & 0000 Xxxx Xxxxx Xxxx Xxxxx Xxx Xxxxx XX 00000
147 00 Xxxxxx Xxxx Xxxx Xxxxxx XX 00000
148 0000-0000 Xxxxx Xxxx Xxxxxxxxxxxx XX 00000
149 00000 Xxxxx Xxxx Xxxxxxx Xxxxx XX 00000
150 00000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000
151 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000
152 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
153 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxx XX 00000
154 000 Xxxx Xxxx Xxxxxx Xxxxx XX 00000
155 00000 XX Xxxxxxx 00 Xxxxx Xxxx Xxxxxx XX 00000
156 0000 Xxxxx 000 Xxxxxxxxx Xxxxxxxx XX 00000
157 165,175 and 000 Xxxxx Xxxxxxx Xxxxx Xxx Xxxxxx XX 00000
158 10613 & 00000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
159 3350-3364 Broadmoor Avenue, 00-00 X. Xxxxxxx Xxxx,
000-000 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
160 000 Xxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
161 000 Xxxxx Xxxxxxx Xxxx Xxxx xx Xxx XX 00000
162 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxxxx XX 00000
163 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
164 0000 Xxxxx Xxxxxx Xxxxxx Xxx Xxxxxxxxxx XX 00000
165 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
166 412-440 & 00-00 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
CROSS
COLLATER-
ALIZED MASTER
CUT-OFF DATE (MORTGAGE MORTGAGE SERVICING ARD LOAN
LOAN NUMBER COUNTY PRINCIPAL BALANCE LOAN GROUP RATE FEE RATE (YES/NO)? ARD
-----------------------------------------------------------------------------------------------------------------------
1 Various 200,000,000.00 (Note 1) No 6.5875% 0.0400% No
1.1 Sarpy
1.2 Xxxxx
1.3 Xxxxx
1.4 Xxxxx
1.5 Shasta
1.6 Kootenai
1.7 Ada
1.8 Saint Louis
1.9 Xxxxxxx
1.10 Dane
1.11 Outagamie
1.12 Dane
1.13 Blue Earth
1.14 Olmsted
1.15 Olmsted
1.16 Xxxxx
1.17 Xxxxx
1.18 Xxxxxx
1.19 Xxxxxxx
1.20 Xxxxxxx
1.21 Fond du Lac
1.22 Marquette
1.23 Minnehaha
1.24 Xxxxxxxxxx
1.25 Winnebago
1.26 Eau Claire
1.27 Wood
1.28 Missoula
1.29 Winnebago
1.30 Outagamie
1.31 Spokane
1.32 Racine
1.33 Spokane
1.34 Wood
1.35 Rock
1.36 Mower
1.37 Xxxxxx
1.38 Xxxxx
1.39 Dane
1.40 Hall
1.41 Kenosha
1.42 Yellowstone
1.43 Jefferson
1.44 Xxxxxx
1.45 Lancaster
1.46 Washington
1.47 Winnebago
1.48 Rock
1.49 La Crosse
1.50 Dane
1.51 Sheboygan
1.52 Salt Lake
1.53 Salt Lake
1.54 Winona
1.55 Yakima
1.56 Xxxxxxx
1.57 Ozaukee
1.58 Xx Xxxxxx
0.00 Xxxx
1.60 Chippewa
1.61 Xxxxx
1.62 Manitowoc
1.63 Codington
1.64 Marathon
1.65 Portage
1.66 XxXxxx
1.67 Xxxxx
1.68 Xxxxx
1.69 Cascade
1.70 Xxxxx and Xxxxx
1.71 Xxxxxxx
1.72 Xxxxxxxxx
1.73 Xxxxx
1.74 Cerro Gordo
1.75 Xxxxx
1.76 Ada
1.77 Salt Lake
1.78 Xxxxxx
1.79 Walworth
1.80 Sarpy
1.81 Xxxxx
1.82 Saint Croix
1.83 Green
1.84 Xxxxxxxx
1.85 Madison
1.86 Lincoln
1.87 Delta
1.88 Xxxxxx
1.89 Canyon
1.90 Houghton
1.91 Marinette
1.92 Utah
1.93 Twin Falls
1.94 Xxxx
1.95 Bannock
1.96 Bonneville
1.97 Xxx
1.98 Walla Walla
1.99 Yakima
1.100 Xxxxxxxxxx
1.101 Utah
1.102 Cache
1.103 Box Elder
1.104 Jefferson
1.105 Nez Perce
1.106 Xxxxx
1.107 Xxxxx
1.108 Xxxxxx
1.109 Xxxxx
1.110 Spokane
1.111 Des Moines
1.112 Ozaukee
2 Orange 133,000,000.00 No 5.5000% 0.0300% No
3 Fairfax 93,000,000.00 No 5.5720% 0.0300% No
4 Various 72,000,000.00 No 5.3225% 0.0300% No
4.1 Nassau
4.2 Nassau
4.3 Westchester
4.4 Westchester
4.5 Suffolk
4.6 Essex
4.7 Nassau
5 Various 63,000,000.00 No 6.0800% 0.0300% No
5.1 Erie
5.2 Sauk
6 Orange 55,000,000.00 No 5.1900% 0.0600% No
7 Orange 42,695,000.00 No 5.3100% 0.0400% No
8 Allegheny 19,762,500.00 Yes (C1) 5.8800% 0.0700% No
9 Allegheny 9,487,500.00 Yes (C1) 5.8800% 0.0700% No
10 Allegheny 4,670,000.00 Yes (C1) 5.8800% 0.0700% No
11 Washington 4,350,000.00 Yes (C1) 5.8800% 0.0700% No
12 Canadian 9,615,000.00 Yes (C2) 5.4400% 0.0300% No
13 Oklahoma 7,623,000.00 Yes (C2) 5.4400% 0.0300% No
14 Oklahoma 6,763,000.00 Yes (C2) 5.4400% 0.0300% No
15 Canadian 6,340,000.00 Yes (C2) 5.4400% 0.0300% No
16 Oklahoma 4,131,000.00 Yes (C2) 5.4400% 0.0300% No
17 Tulsa 1,510,000.00 Yes (C2) 5.4400% 0.0300% No
18 Oklahoma 1,297,000.00 Yes (C2) 5.4400% 0.0300% No
19 Oklahoma 721,000.00 Yes (C2) 5.4400% 0.0300% No
20 San Diego 36,500,000.00 No 5.8200% 0.0400% No
21 Richland 34,800,000.00 No 5.9200% 0.0500% No
22 Bucks 33,000,000.00 No 5.9400% 0.0400% No
23 Clearfield 32,812,500.00 No 6.4100% 0.0300% No
24 Xxxx 30,250,000.00 No 5.4850% 0.0300% No
25 Xxxxxx 26,700,000.00 No 5.4700% 0.0300% No
26 Clay 26,500,000.00 No 5.6000% 0.0300% No
27 Gwinnett 25,600,000.00 No 5.4900% 0.0300% No
28 Hillsborough 22,955,854.73 No 5.7836% 0.0300% No
29 Bossier 22,500,000.00 No 5.4500% 0.0300% No
30 Xxxxxx 22,167,000.00 No 4.435% (Note 5) 0.0300% No
31 Allegheny 21,900,000.00 No 5.7800% 0.0800% No
32 Middlesex 20,000,000.00 No 5.5300% 0.0450% No
33 Middlesex 19,900,000.00 No 5.6400% 0.0300% No
34 Xxxxxxxxxx 19,900,000.00 No 5.5800% 0.0300% No
35 Middlesex 19,895,714.89 No 5.6500% 0.0300% No
36 Prince Xxxxxxx 19,815,000.00 No 5.5800% 0.0300% No
37 Genesee 19,500,000.00 No 6.0000% 0.0700% No
38 King 18,800,000.00 No 6.0450% 0.0300% No
39 Wake 17,500,000.00 No 5.5500% 0.0400% No
40 Xxxxxx 17,480,000.00 No 5.6800% 0.0300% No
41 Xxxxxxx 17,120,000.00 No 5.6600% 0.0300% No
42 Los Angeles 16,659,061.47 No 6.0300% 0.0300% Yes 12/11/15
43 Cape May 16,250,000.00 No 5.7650% 0.0300% No
44 Orange 16,200,000.00 No 5.7700% 0.0300% No
45 Pima 16,000,000.00 No 5.4900% 0.0300% No
46 King 15,881,825.18 No 5.7710% 0.0300% No
47 Henrico 15,558,229.72 No 6.1050% 0.0300% No
48 Xxxxx 15,540,000.00 No 5.5600% 0.0400% No
49 Washtenaw 15,190,000.00 No 5.7600% 0.0300% No
50 Alameda 14,904,880.26 No 5.4950% 0.0300% No
51 Xxxxxxx 14,800,000.00 No 4.375% (Note 6) 0.0300% No
52 Spokane 8,879,000.00 Yes (C3) 5.6650% 0.0700% No
53 Spokane 5,846,000.00 Yes (C3) 5.6650% 0.0700% No
54 Sonoma 14,600,000.00 No 5.2300% 0.0300% No
55 Essex 14,500,000.00 No 5.5800% 0.0300% No
56 Xxxxxx 14,500,000.00 No 5.7400% 0.0400% No
57 Philadelphia 14,487,323.99 No 5.7950% 0.0300% No
58 Shelby 14,475,000.00 No 5.9600% 0.0700% No
59 Davidson 14,360,000.00 No 5.7790% 0.0300% No
60 XxXxxxx 7,063,125.43 Yes (C4) 5.6700% 0.0300% No
61 XxXxxxx 7,063,125.43 Yes (C4) 5.6700% 0.0300% No
62 Pima 14,000,000.00 No 5.5150% 0.0300% No
63 Shelby 13,500,000.00 No 5.8000% 0.0600% No
64 Waukesha 13,472,999.49 No 5.5950% 0.0300% No
65 Various 13,257,088.85 No 6.2600% 0.0300% No
65.1 Xxxx
65.2 Xxxxxx
65.3 Xxxx
66 Orange 13,200,000.00 No 5.9400% 0.0700% No
67 Maricopa 13,000,000.00 No 5.9000% 0.0700% No
68 Hartford 13,000,000.00 No 6.1000% 0.0300% No
69 Winnebago 12,850,000.00 No 6.1540% 0.0300% Yes 5/11/16
70 Oktibbeha 12,305,040.06 No 5.7400% 0.0300% No
70.1 Oktibbeha
70.2 Oktibbeha
71 Middlesex 12,300,000.00 No 5.5400% 0.0300% No
72 Los Angeles 12,000,000.00 No 6.0300% 0.0300% No
73 Jefferson 11,717,659.97 No 5.8650% 0.0700% No
74 Xxxxxx 11,679,814.72 No 6.2600% 0.0300% No
74.1 Xxxxxx
74.2 Xxxxxx
75 Xxxxxx 11,589,970.00 No 6.2600% 0.0300% No
75.1 Xxxxxx
75.2 Xxxxxx
76 Westchester 11,400,000.00 No 6.2400% 0.0700% No
77 Xxxxxxxxxx 11,150,000.00 No 5.6680% 0.0300% No
78 Xxxxxxx 11,004,000.00 No 5.5000% 0.0300% Yes 2/11/16
79 Virginia Beach City 10,953,250.82 No 5.7000% 0.0800% No
80 Hartford 10,405,000.00 No 5.5330% 0.0300% No
81 Jefferson 10,069,086.88 No 5.8900% 0.0600% No
82 Xxxxx 9,528,182.19 No 5.6900% 0.0600% No
83 Mecklenburg 9,429,933.55 No 5.7800% 0.0300% No
84 Rockland 9,300,000.00 No 5.6400% 0.0300% No
85 Spokane 9,200,000.00 No 5.8900% 0.0700% No
86 Henrico 9,100,000.00 No 5.5150% 0.0300% No
87 Miami-Dade 8,993,688.75 No 6.6100% 0.0900% No
88 Kent 8,800,000.00 No 6.1900% 0.0900% No
89 Collin 8,800,000.00 No 5.5500% 0.0300% No
90 Newport News City 8,659,854.23 No 6.0200% 0.0700% No
91 Somerset 8,579,099.25 No 5.9500% 0.0300% No
92 Xxxxxx 8,550,000.00 No 5.5200% 0.0600% No
93 King 8,400,000.00 No 5.5200% 0.0400% No
94 Oakland 8,250,000.00 No 5.5600% 0.0300% No
95 Waukesha 8,200,000.00 No 5.5140% 0.0300% Yes 2/11/16
96 Norfolk 8,014,417.28 No 5.4900% 0.0300% No
97 Xxxxx 7,900,000.00 No 5.7900% 0.0300% Yes 1/11/21
98 Tulsa 7,750,000.00 No 6.2800% 0.0900% No
99 Stanislaus 7,600,000.00 No 6.6500% 0.0900% No
100 Dekalb 7,500,000.00 No 5.6950% 0.0400% No
101 Maricopa 7,500,000.00 No 5.6000% 0.0900% No
102 Orange 7,500,000.00 No 5.4900% 0.0300% No
103 Clay 7,455,000.00 No 5.6400% 0.0300% No
104 Niagara 7,430,000.00 No 5.6600% 0.0300% No
105 Xxxx Arundel 7,300,000.00 No 5.7700% 0.0700% No
106 Greenville 7,275,000.00 No 5.4600% 0.0700% No
107 Milwaukee 7,240,000.00 No 5.5140% 0.0300% Yes 2/11/16
000 Xxxxxxxx 7,000,000.00 No 5.6300% 0.0300% No
000 Xxxxxxxxxxxx 6,991,360.08 No 6.1700% 0.0900% No
110 Mecklenburg 6,940,000.00 No 5.4900% 0.0300% No
111 Colin 6,896,389.40 No 7.5600% 0.0400% No
112 Orange 6,892,201.69 No 6.6050% 0.0300% No
113 Orange 6,863,000.00 No 6.2100% 0.0700% No
114 Cleveland 6,600,000.00 No 5.4630% 0.0300% No
000 Xxxxxxxxxx 6,132,921.72 No 5.6750% 0.0300% No
116 Xxxxxxx 6,059,995.36 No 5.7710% 0.0500% No
000 Xxxxxx 6,000,000.00 No 5.3600% 0.0300% No
118 Orange 6,000,000.00 No 5.6050% 0.0300% No
119 Xxxxxxx 5,964,649.56 No 5.3600% 0.0300% No
120 Xxxxx 5,868,991.07 No 5.6100% 0.0300% No
121 Clackamas 5,865,000.00 No 5.2500% 0.0300% No
122 Waukesha 5,840,000.00 No 5.5180% 0.0300% Yes 2/11/16
123 Palm Beach 5,720,136.79 No 5.6700% 0.1100% No
124 Lubbock 3,583,130.00 Yes (C5) 5.6900% 0.0300% Yes 2/11/21
125 Cuyahoga 1,120,980.00 Yes (C5) 5.6900% 0.0300% Yes 2/11/21
000 Xxxxxxxxx 1,015,890.00 Yes (C5) 5.6900% 0.0300% Yes 2/11/21
127 Xxxxxxx 5,648,000.00 No 6.3000% 0.0700% No
128 Lake 5,500,000.00 No 5.5350% 0.0300% No
129 Monterey 5,500,000.00 No 5.5950% 0.0900% No
130 Washoe 5,500,000.00 No 5.8100% 0.0900% No
131 Xxxxx 5,350,000.00 No 5.4280% 0.0300% No
132 Polk 5,318,235.01 No 5.6700% 0.0700% No
133 Iredell 5,267,694.39 No 5.6950% 0.0600% No
134 Marathon 5,155,000.00 No 5.9300% 0.0600% No
135 Milwaukee 5,120,000.00 No 5.5170% 0.0300% Yes 2/11/16
000 Xxxxx Xxxxx Xxxx 5,080,000.00 No 5.4400% 0.0300% No
137 Horry 5,036,062.11 No 5.9300% 0.0700% No
138 Waukesha 4,984,768.43 No 5.4200% 0.0300% No
139 Oakland 4,989,402.83 No 5.3250% 0.0300% No
140 Hartford 4,805,000.00 No 5.5330% 0.0300% No
141 Shasta 4,767,517.24 No 5.2538% 0.0300% Yes 6/11/15
142 Xxxx 4,753,131.80 No 5.4000% 0.0300% No
143 Richmond City 4,750,000.00 No 5.4250% 0.1100% No
144 Horry 4,686,916.00 No 5.8800% 0.0700% No
145 Xxxxxx 4,500,000.00 No 6.6300% 0.0400% No
146 Xxxxx 4,500,000.00 No 6.2300% 0.0700% No
147 New Haven 4,500,000.00 No 5.7900% 0.0300% Yes 1/11/21
148 Dutchess 4,100,000.00 No 5.8100% 0.0300% No
149 Orange 4,045,121.50 No 6.2920% 0.0300% Yes 5/11/16
150 Newport News 3,996,501.37 No 5.7930% 0.0900% No
151 Kalamazoo 3,996,410.95 No 5.6930% 0.0900% No
152 Hennepin 3,890,000.00 No 5.6300% 0.0500% No
153 Franklin 3,838,865.54 No 5.6500% 0.0600% No
154 Pitkin 3,689,078.23 No 5.5600% 0.0600% No
155 Pasco 3,541,365.12 No 5.3900% 0.0300% No
156 Xxxxxx 3,520,000.00 No 5.5100% 0.0700% No
157 Marin 3,435,032.39 No 5.5900% 0.0300% No
158 Maricopa 3,397,357.05 No 6.2400% 0.0400% No
159 Franklin 3,397,342.69 No 6.2200% 0.0900% No
000 Xxxx Xxxxxxxx 2,892,000.00 No 5.5100% 0.0300% No
161 Fond du Lac 2,845,738.79 No 5.5350% 0.0300% No
162 Xxxxxx 2,600,000.00 No 6.1200% 0.0900% No
163 Jefferson 2,357,246.41 No 5.4900% 0.0900% No
164 York 1,892,135.07 No 5.8400% 0.0300% Yes 2/11/16
000 Xxxxxxxxx 1,742,742.31 No 5.8300% 0.0300% Yes 2/11/16
166 Franklin 865,000.00 No 6.4500% 0.0900% No
INTEREST
RESERVE
MORTGAGE
LOAN
LOAN NUMBER ADDITIONAL INTEREST RATE AFTER ARD (YES/NO)? LOAN TYPE
--------------------------------------------------------------------------------------------------------------------------
1 Yes Balloon
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.70
1.71
1.72
1.73
1.74
1.75
1.76
1.77
1.78
1.79
1.80
1.81
1.82
1.83
1.84
1.85
1.86
1.87
1.88
1.89
1.90
1.91
1.92
1.93
1.94
1.95
1.96
1.97
1.98
1.99
1.100
1.101
1.102
1.103
1.104
1.105
1.106
1.107
1.108
1.109
1.110
1.111
1.112
2 Yes Partial IO/Balloon
3 Yes Interest Only
4 Yes Interest Only
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5 Yes Partial IO/Balloon
5.1
5.2
6 Yes Partial IO/Balloon
7 Yes Partial IO/Balloon
8 Yes (C1) Balloon
9 Yes (C1) Balloon
10 Yes (C1) Balloon
11 Yes (C1) Balloon
12 Yes (C2) Partial IO/Balloon
13 Yes (C2) Partial IO/Balloon
14 Yes (C2) Partial IO/Balloon
15 Yes (C2) Partial IO/Balloon
16 Yes (C2) Partial IO/Balloon
17 Yes (C2) Partial IO/Balloon
18 Yes (C2) Partial IO/Balloon
19 Yes (C2) Partial IO/Balloon
20 Yes Partial IO/Balloon
21 Yes Partial IO/Balloon
22 Yes Partial IO/Balloon
23 Yes Partial IO/Balloon
24 Yes Partial IO/Balloon
25 Yes Partial IO/Balloon
26 Yes Partial IO/Balloon
27 Yes Partial IO/Balloon
28 Yes Balloon
29 Yes Partial IO/Balloon
30 Yes Partial IO/Balloon
31 Yes Partial IO/Balloon
32 Yes Partial IO/Balloon
33 Yes Partial IO/Balloon
34 Yes Partial IO/Balloon
35 Yes Balloon
36 Yes Partial IO/Balloon
37 Yes Balloon
38 Yes Partial IO/Balloon
39 Yes Partial IO/Balloon
40 Yes Partial IO/Balloon
41 Yes Partial IO/Balloon
42 2% plus Initial Interest Rate Yes ARD
43 Yes Partial IO/Balloon
44 Yes Partial IO/Balloon
45 Yes Interest Only
46 Yes Balloon
47 Yes Balloon
48 Yes Partial IO/Balloon
49 Yes Partial IO/Balloon
50 Yes Balloon
51 Yes Partial IO/Balloon
52 Yes (C3) Partial IO/Balloon
53 Yes (C3) Partial IO/Balloon
54 Yes Partial IO/Balloon
55 Yes Partial IO/Balloon
56 Yes Partial IO/Balloon
57 Yes Balloon
58 Yes Balloon
59 Yes Interest Only
60 Yes (C4) Balloon
61 Yes (C4) Balloon
62 Yes Interest Only
63 Yes Partial IO/Balloon
64 Yes Balloon
65 Yes Balloon
65.1
65.2
65.3
66 Yes Partial IO/Balloon
67 Yes Partial IO/Balloon
68 Yes Partial IO/Balloon
69 2% plus Initial Interest Rate Yes Partial IO/ARD
70 Yes Balloon
70.1
70.2
71 Yes Partial IO/Balloon
72 Yes Partial IO/Balloon
73 Yes Balloon
74 Yes Balloon
74.1
74.2
75 Yes Balloon
75.1
75.2
76 Yes Partial IO/Balloon
77 Yes Partial IO/Balloon
78 Greater of (i) 2% plus initial interest rate and
(ii) 3% plus annualized yield Yes Partial IO/ARD
79 Yes Balloon
80 Yes Partial IO/Balloon
81 Yes Balloon
82 Yes Balloon
83 Yes Balloon
84 Yes Partial IO/Balloon
85 Yes Partial IO/Balloon
86 Yes Partial IO/Balloon
87 Yes Balloon
88 Yes Partial IO/Balloon
89 Yes Partial IO/Balloon
90 Yes Balloon
91 Yes Balloon
92 Yes Partial IO/Balloon
93 Yes Partial IO/Balloon
94 Yes Partial IO/Balloon
95 2% plus Initial Interest Rate Yes Partial IO/ARD
96 Yes Balloon
97 Greater of (i) 2% plus initial interest rate and
(ii) 3% plus annualized yield Yes Partial IO/ARD
98 Yes Balloon
99 Yes Balloon
100 Yes Interest Only
101 Yes Partial IO/Balloon
102 Yes Interest Only
103 Yes Partial IO/Balloon
104 Yes Partial IO/Balloon
105 Yes Partial IO/Balloon
106 Yes Partial IO/Balloon
107 2% plus Initial Interest Rate Yes Partial IO/ARD
108 Yes Partial IO/Balloon
109 Yes Balloon
110 Yes Interest Only
111 Yes Balloon
112 Yes Balloon
113 Yes Partial IO/Balloon
114 Yes Partial IO/Balloon
115 Yes Balloon
116 Yes Balloon
117 Yes Partial IO/Balloon
118 Yes Partial IO/Balloon
119 Yes Balloon
120 Yes Balloon
121 Yes Partial IO/Balloon
122 2% plus Initial Interest Rate Yes Partial IO/ARD
123 Yes Balloon
124 Greater of (i) 2% plus initial interest rate or (ii) 3% plus annualized yield Yes (C5) Partial IO/ARD
125 Greater of (i) 2% plus initial interest rate or (ii) 3% plus annualized yield Yes (C5) Partial IO/ARD
126 Greater of (i) 2% plus initial interest rate and (ii) 3% plus annualized yield Yes (C5) Partial IO/ARD
127 Yes Balloon
128 Yes Partial IO/Balloon
129 Yes Partial IO/Balloon
130 Yes Partial IO/Balloon
131 Yes Interest Only
132 Yes Balloon
133 Yes Balloon
134 Yes Partial IO/Balloon
135 2% plus Initial Interest Rate Yes Partial IO/ARD
136 Yes Partial IO/Balloon
137 Yes Balloon
138 Yes Balloon
139 Yes Balloon
140 Yes Partial IO/Balloon
141 2% plus Initial Interest Rate Yes ARD
142 Yes Balloon
143 Yes Partial IO/Balloon
144 Yes Balloon
145 Yes Balloon
146 Yes Partial IO/Balloon
147 Greater of (i) 2% plus initial interest rate and (ii) 3% plus annualized yield Yes Partial IO/ARD
148 Yes Partial IO/Balloon
149 Greater of (i) 2% plus initial interest rate and (ii) 3% plus annualized yield Yes ARD
150 Yes Balloon
151 Yes Balloon
152 Yes Partial IO/Balloon
153 Yes Balloon
154 Yes Balloon
155 Yes Balloon
156 Yes Partial IO/Balloon
157 Yes Balloon
158 Yes Balloon
159 Yes Balloon
160 Yes Partial IO/Balloon
161 Yes Balloon
162 Yes Balloon
163 Yes Balloon
164 Greater of (i) 2% plus initial interest rate and (ii) 3% plus annualized yield Yes ARD
165 Greater of (i) 2% plus initial interest rate and (ii) 3% plus annualized yield Yes ARD
166 Yes Balloon
ORIGINAL REMAINING STATED STATED
PERIODIC PAYMENT TERM TO TERM TO ORIGINAL REMAINING
STATED ON FIRST DUE MATURITY / MATURITY / AMORTIZATION AMORTIZATION
GRACE PERIOD MATURITY DATE AFTER ARD ARD TERM TERM DEFEASANCE LOAN
LOAN NUMBER (DAYS) DATE CLOSING (MONTHS) (MONTHS) (MONTHS) (MONTHS) (YES/NO)?
--------------------------------------------------------------------------------------------------------------------------------
1 3 (Note 4) 6/8/16 1,275,666.82 120 120 360 360 Yes
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.70
1.71
1.72
1.73
1.74
1.75
1.76
1.77
1.78
1.79
1.80
1.81
1.82
1.83
1.84
1.85
1.86
1.87
1.88
1.89
1.90
1.91
1.92
1.93
1.94
1.95
1.96
1.97
1.98
1.99
1.100
1.101
1.102
1.103
1.104
1.105
1.106
1.107
1.108
1.109
1.110
1.111
1.112
2 0 4/11/16 609,583.33 120 118 360 360 Yes
3 0 1/9/13 431,830.00 84 79 Interest Only Interest Only Yes
4 0 1/9/16 319,350.00 120 115 Interest Only Interest Only Yes
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5 0 3/1/13 319,200.00 84 81 360 360 Yes
5.1
5.2
6 5 7/1/15 237,875.00 120 109 360 360 No
7 0 10/11/15 188,925.38 120 112 360 360 Yes
8 0 6/11/16 125,884.36 120 120 300 300 Yes
9 0 6/11/16 60,434.05 120 120 300 300 Yes
10 0 6/11/16 29,747.25 120 120 300 300 Yes
11 0 6/11/16 27,708.89 120 120 300 300 Yes
12 0 1/11/16 43,588.00 120 115 360 360 Yes
13 0 1/11/16 34,557.60 120 115 360 360 Yes
14 0 1/11/16 30,658.93 120 115 360 360 Yes
15 0 1/11/16 28,741.33 120 115 360 360 Yes
16 0 1/11/16 18,727.20 120 115 360 360 Yes
17 0 1/11/16 6,845.33 120 115 360 360 Yes
18 0 1/11/16 5,879.73 120 115 360 360 Yes
19 0 1/11/16 3,268.53 120 115 360 360 Yes
20 5 6/1/16 177,025.00 120 120 360 360 Yes
21 5 6/1/16 171,680.00 120 120 360 360 Yes
22 0 4/11/16 163,350.00 120 118 360 360 Yes
23 0 5/11/16 175,273.44 120 119 360 360 Yes
24 5 (Note 4) 2/11/16 138,267.71 120 116 360 360 Yes
25 0 2/11/16 121,707.50 120 116 360 360 Yes
26 0 3/11/16 123,666.67 120 117 360 360 Yes
27 0 4/11/16 117,120.00 120 118 360 360 Yes
28 0 4/11/16 134,713.09 120 118 360 358 No
29 0 1/11/16 102,187.50 120 115 360 360 Yes
30 0 12/11/15 81,925.54 (Note 5) 120 114 360 360 Yes
31 0 5/11/16 105,485.00 120 119 360 360 Yes
32 0 2/11/16 92,166.67 120 116 360 360 Yes
33 0 3/11/16 93,530.00 120 117 360 360 Yes
34 0 3/11/16 92,535.00 120 117 420 420 Yes
35 0 1/11/16 115,447.16 120 115 360 355 Yes
36 0 3/11/16 92,139.75 120 117 420 420 Yes
37 5 6/1/16 125,638.77 120 120 300 300 Yes
38 0 5/11/16 94,705.00 120 119 360 360 No
39 0 3/16/06 80,937.50 120 117 360 360 Yes
40 0 3/11/06 82,738.67 120 118 360 360 Yes
41 0 4/11/16 80,749.33 120 118 360 360 Yes
42 0 12/11/30 108,550.93 120 114 300 294 Yes
43 0 4/11/16 78,067.71 120 118 360 360 Yes
44 0 3/11/16 77,895.00 120 117 360 360 Yes
45 0 2/11/11 73,200.00 60 56 Interest Only Interest Only Yes
46 0 1/11/16 100,860.17 120 115 300 295 Yes
47 0 4/11/11 101,514.67 60 58 300 298 Yes
48 0 3/11/16 72,002.00 120 117 360 360 Yes
49 0 4/11/16 72,912.00 120 118 360 360 Yes
50 0 12/11/15 85,121.30 120 114 360 354 Yes
51 0 1/11/16 53,958.33 (Note 6) 120 115 360 360 Yes
52 0 3/11/16 41,916.28 120 117 360 360 Yes
53 0 3/11/16 27,597.99 120 117 360 360 Yes
54 0 2/11/16 63,631.67 120 116 360 360 Yes
55 0 1/11/16 67,425.00 120 115 360 360 Yes
56 5 3/1/16 69,358.33 120 117 360 360 Yes
57 0 5/11/06 85,033.03 120 119 360 359 Yes
58 5 6/1/16 86,413.04 120 120 360 360 Yes
59 0 11/11/13 69,155.37 96 89 Interest Only Interest Only No
60 0 1/11/11 41,073.55 60 55 360 355 Yes
61 0 1/11/11 41,073.55 60 55 360 355 Yes
62 0 2/11/13 64,341.67 84 80 Interest Only Interest Only Yes
63 5 5/1/16 65,250.00 120 119 360 360 Yes
64 0 4/11/16 77,458.10 120 118 360 358 Yes
65 0 4/11/16 81,853.63 120 118 360 358 Yes
65.1
65.2
65.3
66 5 5/1/16 65,340.00 120 119 360 360 Yes
67 5 5/1/16 63,916.67 120 119 360 360 Yes
68 0 5/11/16 66,083.33 120 119 360 360 No
69 0 5/11/36 65,899.08 120 119 360 360 Yes
70 0 3/11/16 71,934.52 120 117 360 357 Yes
70.1
70.2
71 0 1/11/16 56,785.00 120 115 360 360 Yes
72 0 5/11/16 60,300.00 120 119 360 360 Yes
73 0 3/11/16 69,430.61 120 117 360 357 Yes
74 0 4/11/16 72,115.02 120 118 360 358 Yes
74.1
74.2
75 0 4/11/16 71,560.29 120 118 360 358 Yes
75.1
75.2
76 0 4/11/16 59,280.00 120 118 360 360 Yes
77 0 1/11/16 52,665.17 120 115 420 420 Yes
78 0 2/11/36 50,435.00 120 116 360 360 Yes
79 0 2/11/16 63,844.05 120 116 360 356 Yes
80 0 4/11/16 47,975.72 120 118 360 360 Yes
81 0 4/11/16 59,771.08 120 118 360 358 Yes
82 0 1/11/16 60,046.63 120 115 300 295 Yes
83 0 1/11/16 59,937.45 120 115 300 295 Yes
84 0 1/11/16 43,710.00 120 115 360 360 Yes
85 5 6/1/16 45,156.67 120 120 360 360 Yes
86 0 1/11/16 41,822.08 120 115 360 360 Yes
87 5 5/1/16 57,538.75 120 119 360 359 Yes
88 5 6/1/16 45,393.33 120 120 360 360 Yes
89 0 1/11/16 40,700.00 120 115 360 360 Yes
90 5 5/1/16 52,074.54 120 119 360 359 Yes
91 0 4/11/16 51,255.40 120 118 360 358 Yes
92 0 1/11/16 39,330.00 120 115 360 360 Yes
93 0 2/11/16 38,640.00 120 116 360 360 Yes
94 0 4/11/16 38,225.00 120 118 360 360 Yes
95 0 2/11/36 37,679.00 120 116 360 360 Yes
96 0 2/11/06 45,656.52 120 116 360 356 Yes
97 0 1/11/36 38,117.50 180 175 360 360 Yes
98 5 6/1/16 47,869.40 120 120 360 360 No
99 5 6/1/16 48,789.33 120 120 360 360 No
100 0 3/11/16 35,593.75 120 117 Interest Only Interest Only Yes
101 0 3/11/16 35,000.00 120 117 360 360 Yes
102 0 4/11/16 34,312.50 120 118 Interest Only Interest Only No
103 0 3/11/16 35,038.50 120 117 360 360 Yes
104 0 1/11/16 35,044.83 120 115 360 360 Yes
105 5 5/1/16 35,100.83 120 119 360 360 Yes
106 0 1/11/16 33,101.25 120 115 360 360 Yes
107 0 2/11/36 33,267.80 120 116 360 360 Yes
108 0 3/11/16 32,841.67 120 117 360 360 Yes
109 5 5/1/16 45,831.31 120 119 300 299 Yes
110 0 2/11/16 31,750.50 120 116 Interest Only Interest Only No
111 5 5/1/21 48,529.60 180 179 360 359 Yes
112 0 5/11/16 47,043.02 120 119 300 299 Yes
113 5 5/1/16 35,516.03 120 119 360 360 No
114 0 2/11/16 30,046.50 120 116 360 360 Yes
115 0 4/11/16 35,568.31 120 118 360 358 Yes
116 0 1/11/21 35,626.72 180 175 360 355 Yes
117 0 3/11/16 26,800.00 120 117 300 300 Yes
118 0 2/11/16 28,025.00 120 116 360 360 (Note 3)
119 0 10/11/15 36,587.60 120 112 300 292 Yes
120 0 1/11/16 33,907.87 120 115 360 355 Yes
121 0 12/11/15 25,659.38 120 114 360 360 Yes
122 0 2/11/36 26,854.27 120 116 360 360 Yes
123 0 1/11/16 33,263.79 120 115 360 355 Yes
124 0 2/11/36 16,990.01 180 176 360 360 Yes
125 0 2/11/36 5,315.31 180 176 360 360 Yes
126 0 2/11/36 4,817.01 180 176 360 360 Yes
127 5 6/1/16 34,959.58 120 120 360 360 Yes
128 0 5/11/16 25,368.75 120 117 360 360 Yes
129 0 3/11/16 25,643.75 120 117 360 360 Yes
130 5 6/1/16 26,629.17 120 120 360 360 Yes
131 0 2/11/16 24,199.83 120 116 Interest Only Interest Only Yes
132 0 1/11/16 30,926.65 120 115 360 355 Yes
133 0 2/11/16 33,166.71 120 116 300 296 Yes
134 5 5/1/16 25,474.29 120 119 360 360 Yes
135 0 2/11/36 23,539.20 120 116 360 360 Yes
136 0 3/11/16 23,029.33 120 117 360 360 Yes
137 0 4/11/16 32,321.48 120 118 300 298 No
138 0 3/11/16 28,138.99 120 117 360 357 Yes
139 0 4/11/16 27,842.91 120 118 360 358 Yes
140 0 4/11/16 22,155.05 120 118 360 360 Yes
141 0 6/11/35 26,693.86 120 108 360 348 No
142 0 9/11/15 26,953.48 120 111 360 351 Yes
143 0 1/11/16 21,473.96 120 115 360 360 Yes
144 0 4/11/16 29,938.34 120 118 300 298 Yes
145 5 6/1/16 30,750.88 120 120 300 300 Yes
146 5 5/1/16 23,362.50 120 119 360 360 Yes
147 0 1/11/36 21,712.50 180 175 360 360 Yes
148 0 4/11/16 19,850.83 120 118 360 360 Yes
149 0 5/11/31 26,821.85 120 119 300 299 Yes
150 0 5/11/16 23,452.29 120 119 360 359 Yes
151 0 5/11/16 23,198.28 120 119 360 359 Yes
152 0 1/11/16 18,250.58 120 115 360 360 Yes
153 0 3/11/16 22,223.58 120 117 360 357 Yes
154 0 3/11/16 21,147.69 120 117 360 357 Yes
155 0 8/11/12 20,080.46 84 74 360 350 Yes
156 0 1/11/16 16,162.67 120 115 360 360 Yes
157 0 2/11/16 19,783.98 120 116 360 356 Yes
158 5 5/1/16 20,912.28 120 119 360 359 Yes
159 5 5/1/16 20,868.09 120 119 360 359 Yes
160 0 4/11/16 13,279.10 120 118 360 360 Yes
161 0 1/11/16 16,307.33 120 115 360 355 Yes
162 5 6/1/16 15,789.47 120 120 360 360 No
163 0 11/11/15 13,470.09 120 113 360 353 Yes
164 0 2/11/36 11,196.75 120 116 360 356 Yes
165 0 2/11/36 10,301.63 120 116 360 356 Yes
166 5 6/1/16 5,438.98 120 120 360 360 Yes
ESCROWED
ANNUAL
REAL
PROPERTY ESTATE
LOAN NUMBER BORROWER'S INTEREST PROPERTY SIZE SIZE TYPE LOCKBOX (YES/NO)? TAXES
-----------------------------------------------------------------------------------------------------------------------------------
1 Fee Simple and Leasehold 10,974,960 SF In-Place Hard 0 (Note 2)
1.1 Fee Simple 535,000 SF
1.2 Fee Simple 218,323 SF
1.3 Fee Simple 494,000 SF
1.4 Fee Simple 126,658 SF
1.5 Fee Simple 94,418 SF
1.6 Fee Simple 84,379 SF
1.7 Fee Simple 347,000 SF
1.8 Fee Simple 119,842 SF
1.9 Fee Simple 100,803 SF
1.10 Fee Simple 99,101 SF
1.11 Fee Simple 112,794 SF
1.12 Fee Simple 94,120 SF
1.13 Fee Simple 90,494 SF
1.14 Fee Simple 90,499 SF
1.15 Fee Simple 90,499 SF
1.16 Fee Simple 97,537 SF
1.17 Fee Simple 105,923 SF
1.18 Fee Simple 106,238 SF
1.19 Fee Simple 90,514 SF
1.20 Fee Simple 90,441 SF
1.21 Fee Simple 102,205 SF
1.22 Fee Simple 124,761 SF
1.23 Fee Simple 90,585 SF
1.24 Fee Simple 94,106 SF
1.25 Fee Simple 94,225 SF
1.26 Fee Simple 94,705 SF
1.27 Fee Simple 100,247 SF
1.28 Fee Simple 102,327 SF
1.29 Fee Simple 90,464 SF
1.30 Fee Simple 98,030 SF
1.31 Fee Simple 94,076 SF
1.32 Fee Simple 100,010 SF
1.33 Fee Simple 99,279 SF
1.34 Fee Simple 101,483 SF
1.35 Fee Simple 98,005 SF
1.36 Fee Simple 90,461 SF
1.37 Fee Simple 90,414 SF
1.38 Fee Simple 77,690 SF
1.39 Fee Simple 97,931 SF
1.40 Fee Simple 103,875 SF
1.41 Fee Simple 97,961 SF
1.42 Fee Simple 100,800 SF
1.43 Fee Simple 96,325 SF
1.44 Fee Simple 101,688 SF
1.45 Fee Simple 86,739 SF
1.46 Fee Simple 94,130 SF
1.47 Fee Simple 81,171 SF
1.48 Fee Simple 93,845 SF
1.49 Fee Simple 94,413 SF
1.50 Fee Simple 98,160 SF
1.51 Fee Simple 97,859 SF
1.52 Fee Simple 94,230 SF
1.53 Fee Simple 94,222 SF
1.54 Fee Simple 84,375 SF
1.55 Fee Simple 94,237 SF
1.56 Fee Simple 71,846 SF
1.57 Fee Simple 83,363 SF
1.58 Fee Simple 88,161 SF
1.59 Fee Simple 71,847 SF
1.60 Fee Simple 91,012 SF
1.61 Fee Simple 65,459 SF
1.62 Fee Simple 87,954 SF
1.63 Fee Simple 66,745 SF
1.64 Fee Simple 88,030 SF
1.65 Fee Simple 90,334 SF
1.66 Fee Simple 71,806 SF
1.67 Fee Simple 100,761 SF
1.68 Fee Simple 66,735 SF
1.69 Fee Simple 90,505 SF
1.70 Fee Simple 116,992 SF
1.71 Fee Simple 77,559 SF
1.72 Fee Simple 94,250 SF
1.73 Fee Simple 94,248 SF
1.74 Fee Simple 90,430 SF
1.75 Fee Simple 94,013 SF
1.76 Fee Simple 100,843 SF
1.77 Fee Simple 94,336 SF
1.78 Fee Simple 66,781 SF
1.79 Fee Simple 75,844 SF
1.80 Fee Simple 67,256 SF
1.81 Fee Simple 94,230 SF
1.82 Fee Simple 75,775 SF
1.83 Fee Simple 73,956 SF
1.84 Fee Simple 66,784 SF
1.85 Fee Simple 66,827 SF
1.86 Fee Simple 70,118 SF
1.87 Fee Simple 83,179 SF
1.88 Fee Simple 66,713 SF
1.89 Fee Simple 90,526 SF
1.90 Fee Simple 73,956 SF
1.91 Fee Simple 83,180 SF
1.92 Fee Simple 94,042 SF
1.93 Fee Simple 94,068 SF
1.94 Fee Simple 75,844 SF
1.95 Fee Simple 90,430 SF
1.96 Fee Simple 90,510 SF
1.97 Fee Simple 71,839 SF
1.98 Fee Simple 83,211 SF
1.99 Leasehold 94,136 SF
1.100 Fee Simple 75,844 SF
1.101 Fee Simple 71,345 SF
1.102 Leasehold 94,225 SF
1.103 Fee Simple 71,340 SF
1.104 Fee Simple 75,063 SF
1.105 Leasehold 94,091 SF
1.106 Fee Simple 15,060 SF
1.107 Fee Simple 14,265 SF
1.108 Fee Simple 60,985 SF
1.109 Fee Simple 28,953 SF
1.110 Leasehold 90,590 SF
1.111 Leasehold 80,327 SF
1.112 Fee Simple 12,821 SF
2 Fee Simple 636,922 SF In-Place Hard, Springing Cash Management 831,294
3 Fee Simple 486,081 SF In-Place Hard, Springing Cash Management 0
4 Fee Simple and Leasehold 915,558 SF In-Place Hard, Springing Cash Management 0
4.1 Fee Simple 207,583 SF
4.2 Leasehold 214,581 SF
4.3 Fee Simple 124,515 SF
4.4 Fee Simple 127,064 SF
4.5 Fee Simple 70,110 SF
4.6 Fee Simple 70,716 SF
4.7 Fee Simple 100,989 SF
5 Fee Simple 580 Rooms In-Place Hard, Springing Cash Management 1,490,477
5.1 Fee Simple 271 Rooms 0
5.2 Fee Simple 309 Rooms 0
6 Fee Simple 422 Units None 482,267
7 Fee Simple 270,097 SF In-Place Hard 544,282
0
8 Fee Simple 198 Rooms None 483,390
9 Fee Simple 125 Rooms None 259,984
10 Leasehold 70 Rooms None 55,798
11 Fee Simple 70 Rooms None 41,303
0
12 Fee Simple 310,000 SF None 126,141
13 Fee Simple 145,000 SF None 88,188
14 Fee Simple 91,644 SF None 83,306
15 Fee Simple 121,750 SF None 61,866
16 Fee Simple 138,390 SF None 47,698
17 Fee Simple 32,500 SF None 21,327
18 Fee Simple 14,000 SF None 14,300
19 Fee Simple 7,490 SF None 6,340
20 Fee Simple 105,472 SF None 345,966
21 Fee Simple 302,843 SF None 715,945
22 Fee Simple 390 Units None 365,472
23 Fee Simple 439,451 SF Springing Hard 336,429
24 Fee Simple 334,195 SF In-Place Hard 577,498
25 Fee Simple 121,300 SF None 0
26 Fee Simple 793,593 SF None 263,695
27 Fee Simple 508 Units In-Place Soft 295,335
28 Fee Simple 115,367 SF None 342,863
29 Fee Simple 147,889 SF Springing Hard 101,022
30 Fee Simple 350 Units In-Place Soft 301,883
31 Fee Simple 149,342 SF None 0
32 Leasehold 216 Units Springing Hard 550,156
33 Fee Simple 295,700 SF None 451,179
34 Fee Simple 93,345 SF None 189,898
35 Fee Simple 143,148 SF Springing Hard 395,418
36 Fee Simple 104,077 SF None 295,688
37 Fee Simple 400,000 SF In-Place Hard 0
38 Fee Simple 124,136 SF None 151,803
39 Fee Simple 216 Units Springing Hard 234,069
40 Fee Simple 121,038 SF None 150,634
41 Fee Simple 76,238 SF Springing Hard 154,520
42 Fee in Part, Leasehold in Part 255 Rooms Springing Hard 156,332
43 Fee Simple 150,678 SF None 307,679
44 Fee Simple 209,250 SF Springing Hard 0
45 Fee Simple 464 Units None 188,066
46 Fee Simple 219 Rooms Springing Hard 214,499
47 Fee Simple 155 Rooms None 151,736
48 Fee Simple 116,049 SF Springing Hard 99,634
49 Fee Simple 324 Units None 475,006
50 Fee Simple 127,354 SF None 0
51 Fee Xxxxxx 000 Xxxxx Xx-Xxxxx Soft 218,624
0
52 Fee Simple 192 Units None 95,861
53 Fee Simple 132 Units None 66,388
54 Fee Simple 32,238 SF In-Place Soft, Springing Hard 179,946
55 Fee Simple 130,706 SF In-Place Hard 0
56 Fee Simple 124,000 SF In-Place Hard 287,600
57 Fee Simple 23,218 SF None 207,718
58 Fee Simple 126,088 SF Springing Hard 202,941
59 Fee Simple 86,872 SF None 0
60 Fee Simple 102 Units None 89,290
61 Fee Simple 100 Units None 77,407
62 Fee Simple 400 Units None 168,049
63 Fee Simple 289 Units None 77,470
64 Fee Simple 475 Units None 451,565
65 Fee Simple 248 Rooms Springing Soft 101,018
65.1 Fee Simple 83 Rooms 0
65.2 Fee Simple 87 Rooms 0
65.3 Fee Simple 78 Rooms 0
66 Fee Simple 80,998 SF In-Place Hard 191,400
67 Fee Simple 74,549 SF None 220,230
68 Fee Simple 47,174 SF None 0
69 Fee Simple 110,725 SF Springing Hard 204,730
70 Fee Simple 209 Units In-Place Soft 239,385
70.1 Fee Simple 105 Units 0
70.2 Fee Simple 104 Units 0
71 Fee Simple 89,931 SF Springing Hard 213,942
72 Fee Simple 15,000 SF None 107,540
73 Fee Simple 107,598 SF Springing Hard 72,854
74 Fee Simple 197 Rooms Springing Soft 93,855
74.1 Fee Simple 115 Rooms 0
74.2 Fee Simple 82 Rooms 0
75 Fee Simple 202 Rooms Springing Soft 115,928
75.1 Fee Simple 114 Rooms 0
75.2 Fee Simple 88 Rooms 0
76 Fee Simple 65,000 SF None 0
77 Fee in Part, Leasehold in Part 29,620 SF None 97,212
78 Fee Simple 144,298 SF Springing Hard 0
79 Fee Simple 238,881 SF None 194,890
80 Fee Simple 306,619 SF Springing Hard 292,807
81 Fee in Part, Leasehold in Part 60,056 SF In-Place Hard 0
82 Fee Simple 215,581 SF Springing Hard 198,681
83 Fee Simple 90 Rooms None 52,894
84 Fee Simple 219,304 SF In-Place Hard, Springing Cash Management 357,315
85 Fee Simple 121,000 SF In-Place Hard 0
86 Fee Simple 180,252 SF In-Place Hard 91,936
87 Fee Simple 50,192 SF In-Place Hard 0
88 Fee Simple 97,061 SF None 75,700
89 Fee Simple 50,955 SF None 213,439
90 Fee Simple 198 Units None 97,152
91 Fee Simple 72,212 SF Springing Soft 375,838
92 Fee Simple 70,548 SF In-Place Hard 225,967
93 Fee Simple 124,698 SF Springing Hard 141,880
94 Fee Simple 98,972 SF None 227,648
95 Fee Simple 40,000 SF In-Place Hard 0
96 Fee Simple 108,160 SF Springing Hard 152,583
97 Fee Simple 14,490 SF Springing Hard 0
98 Fee Simple 292 Units None 47,500
99 Fee Simple 78 Rooms None 0
100 Fee Simple 58,413 SF None 108,142
101 Fee Simple 271 Units None 101,990
102 Fee Simple 58,366 SF None 0
103 Fee Simple 59,306 SF Springing Hard 146,008
104 Fee Simple 86,436 SF Springing Hard 50,754
105 Fee Simple 61,310 SF In-Place Hard 78,775
106 Fee Simple 138 Units None 103,002
107 Fee Simple 37,500 SF In-Place Hard 0
108 Fee Simple 82,825 SF Springing Hard 141,933
109 Fee Simple 128 Units None 122,285
110 Fee Simple 57,416 SF None 0
111 Fee Simple 126 Units None 164,947
112 Fee Simple 200 Rooms Springing Soft 71,339
113 Fee Simple 35,149 SF None 116,436
114 Fee Simple 248 Units None 97,382
115 Fee Simple 67 Units None 89,047
116 Fee Simple 29,652 SF None 128,983
117 Fee Simple 384 Units None 0
118 Fee Simple 22,035 SF None 46,588
119 Fee Simple 107 Rooms None 97,312
120 Fee Simple 60,535 SF None 82,121
121 Fee Simple 150 Units Springing Soft 130,640
122 Fee Simple 39,772 SF In-Place Hard 0
123 Fee Simple 54,516 SF None 95,395
0
124 Fee Simple 52,907 SF Springing Hard 0
125 Fee Simple 6,783 SF Springing Hard 0
126 Fee Simple 6,770 SF Springing Hard 0
127 Fee Simple 41,355 SF None 103,000
128 Fee Simple 107,021 SF None 97,613
129 Fee Simple 92 Units None 0
130 Fee Simple 41,965 SF None 0
131 Leasehold 51,048 SF None 112,489
132 Fee Simple 84,146 SF None 62,896
133 Fee Simple 74 Rooms None 44,351
134 Fee Simple 136 Units None 146,037
135 Fee Simple 34,263 SF In-Place Hard 0
136 Fee Simple 46,648 SF Springing Hard 102,595
137 Fee Simple 111 Rooms Springing Soft 56,337
138 Fee Simple 168 Units None 186,086
139 Fee Simple 18,398 SF None 36,856
140 Fee Simple 123,986 SF Springing Hard 96,364
141 Fee Simple 28,526 SF Springing Hard 0
142 Fee Simple 43,100 SF None 0
143 Fee Simple 57 Units None 19,963
144 Fee Simple 114 Rooms Springing Hard 60,840
145 Fee Simple 75 Rooms None 67,200
146 Fee Simple 16,134 SF None 38,380
147 Fee Simple 14,820 SF Springing Hard 0
148 Fee Simple 27,825 SF Springing Hard 85,800
149 Fee Simple 11,590 SF Springing Hard 47,763
150 Fee Simple 25,048 SF Springing Hard 0
151 Fee Simple 45,056 SF None 0
152 Fee Simple 36,036 SF None 93,603
153 Fee Simple 17,272 SF None 0
154 Fee Simple 8,815 SF Springing Hard 31,082
155 Fee Simple 11,200 SF None 0
156 Fee Simple 15,030 SF None 29,798
157 Fee Simple 30,823 SF None 61,518
158 Fee Simple 21,044 SF None 52,715
159 Fee Simple 124 Units None 77,470
160 Fee Simple 54,064 SF Springing Hard 123,138
161 Fee Simple 20,000 SF Springing Hard 0
162 Fee Simple 126 Units None 112,950
163 Fee in Part, Leasehold in Part 11,180 SF None 0
164 Fee Simple 11,180 SF Springing Hard 0
165 Fee Simple 11,180 SF Springing Hard 0
166 Fee Simple 32 Units None 18,700
INITIAL
ESCROWED ESCROWED REPLACE- ESCROWED REPLACEMENT ESCROWED TI/LC ESCROWED TI/LC DEFERRED
ANNUAL MENT RESERVES RESERVES CURRENT RESERVES INITIAL RESERVES CURRENT MAINTENANCE
LOAN NUMBER INSURANCE INITIAL DEPOSIT ANNUAL DEPOSIT DEPOSIT ANNUAL DEPOSIT DEPOSIT
----------------------------------------------------------------------------------------------------------------------------------
1 0 (Note 2) 0 0 (Note 2) 0 0 (Note 2) 482,265
1.1
1.2 3,875
1.3
1.4
1.5
1.6
1.7
1.8
1.9 16,625
1.10
1.11
1.12 2,188
1.13 15,000
1.14 6,250
1.15 8,550
1.16
1.17
1.18 9,194
1.19
1.20 3,125
1.21
1.22 13,906
1.23
1.24
1.25
1.26
1.27
1.28 1,875
1.29
1.30 21,250
1.31 12,125
1.32
1.33
1.34 2,750
1.35
1.36
1.37 10,313
1.38 16,000
1.39
1.40 6,250
1.41 3,125
1.42 2,500
1.43 2,250
1.44 4,063
1.45 7,500
1.46
1.47
1.48 1,250
1.49
1.50
1.51
1.52
1.53 4,000
1.54 22,563
1.55 72,698
1.56
1.57
1.58
1.59 21,238
1.60 4,688
1.61 6,250
1.62
1.63
1.64
1.65
1.66 7,813
1.67 1,250
1.68
1.69 2,881
1.70 1,875
1.71
1.72 13,250
1.73 4,250
1.74
1.75
1.76
1.77 10,111
1.78
1.79
1.80 3,125
1.81
1.82 7,813
1.83 13,125
1.84
1.85
1.86 12,250
1.87 1,875
1.88
1.89 17,500
1.90 6,731
1.91
1.92
1.93 21,856
1.94
1.95 14,000
1.96
1.97 3,688
1.98 1,250
1.99 3,250
1.100 4,813
1.101 1,625
1.102 1,250
1.103
1.104 1,250
1.105
1.106
1.107
1.108 22,788
1.109
1.110 1,250
1.111
1.112
2 0 94,825 0 539,725 0
3 0 0 0 6,837,894 0
4 0 0 0 0 0
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5 353,376 0 4% of Gross Revenues NAP NAP
5.1 0
5.2 0
6 54,828 0 61,140 NAP NAP
7 129,951 252,500 0 3,000,000 0 22,500
0
8 0 0 4% of Gross Revenues NAP NAP
9 0 0 4% of Gross Revenues NAP NAP
10 0 0 4% of Gross Revenues NAP NAP
11 0 0 4% of Gross Revenues NAP NAP 4,145
0
12 28,565 0 31,000 0 51,052
13 18,711 0 14,500 0 23,879
14 20,739 0 9,164 0 15,092
15 14,766 0 12,175 0 20,050
16 13,835 0 13,839 0 22,791
17 4,322 0 3,250 0 5,352
18 3,474 0 1,400 0 2,306
19 3,637 0 695 0 1,145
20 63,223 0 16,551 500,000 100,000
21 64,127 0 67,728 700,000 200,000 309,419
22 0 400,000 97,500 NAP NAP 188,450
23 70,377 0 65,840 1,301,259 220,029 30,649
24 52,803 0 0 167,496 0
25 0 0 0 0 0
26 87,427 0 79,359 0 119,039 5,000
27 98,985 2,749,512 0 NAP NAP 115,308
28 99,947 0 17,304 64,200 0
29 36,850 0 33,563 0 0
30 125,164 910,000 0 NAP NAP 11,875
31 0 0 0 0 0
32 0 0 54,000 NAP NAP 22,500
33 0 0 44,355 1,162,862 0
34 0 0 13,054 0 0 22,250
35 0 0 14,315 0 101,635
36 0 0 11,448 0 0
37 0 0 40,000 0 175,000
38 54,692 0 18,665 0 125,179 980,825
39 71,653 0 96,000 NAP NAP
40 23,575 0 12,104 0 64,159
41 0 0 15,221 420,000 0
42 105,462 0 4% of Gross Revenues NAP NAP 7,500
43 53,926 0 0 0 0 161,094
44 0 39,758 0 0 0 10,000
45 74,008 0 116,000 NAP NAP
46 83,274 0 4% of Gross Revenues NAP NAP 1,750
47 0 0 4% of Gross Revenues NAP NAP
48 17,484 0 23,210 398,500 0 1,500
49 0 0 72,900 NAP NAP
50 0 0 0 NAP NAP
51 129,877 2,142,375 0 NAP NAP 193,125
0
52 18,990 0 48,000 NAP NAP 97,375
53 2,187,576 0 33,000 NAP NAP 79,500
54 8,781 0 4,836 0 32,238
55 46,052 0 13,071 650,000 0
56 42,232 0 24,800 957,796 50,000
57 0 0 3,483 0 0
58 27,708 0 25,218 0 0
59 0 0 0 0 0
60 22,951 63,750 0 NAP NAP
61 16,455 62,500 0 NAP NAP 30,150
62 63,360 0 100,000 NAP NAP
63 21,961 300,000 72,250 NAP NAP
64 0 0 150,100 NAP NAP 382,493
65 34,806 0 4% of Gross Revenues NAP NAP
65.1 0
65.2 0
65.3 0
66 19,549 0 21,447 1,000,000 50,000
67 0 0 14,910 1,833,000 45,000
68 0 0 7,076 0 0
69 26,087 0 22,146 0 55,362 6,250
70 239,385 0 62,700 NAP NAP 1,875
70.1 0
70.2 0 1,875
71 0 0 17,986 0 0
72 23,055 0 3,000 0 39,504 1,975
73 0 25,000 0 250,000 0
74 33,554 0 4% of Gross Revenues NAP NAP
74.1 0
74.2 0
75 32,298 0 4% of Gross Revenues NAP NAP
75.1 0
75.2 0
76 0 690,000 12,996 2,400,000 0
77 0 0 2,962 0 0
78 0 0 0 0 0
79 30,114 0 12,261 0 43,000 23,906
80 0 65,000 24,162 0 70,522
81 0 0 0 0 0
82 44,886 0 43,118 0 107,794
83 20,556 0 4% of Gross Revenues NAP NAP
84 59,176 100,000 0 1,438,706 0 20,313
85 0 0 24,281 31,563 50,000
86 0 0 18,025 200,000 0
87 0 25,000 0 0 0
88 14,062 0 14,559 0 0
89 11,260 0 7,643 175,000 0
90 35,779 0 49,500 NAP NAP
91 11,933 0 14,442 0 93,876
92 18,644 0 10,582 0 55,332 18,750
93 11,970 0 17,293 396,625 0 3,375
94 0 0 19,794 0 90,000
95 0 0 0 0 0
96 21,901 0 17,306 0 54,080
97 0 0 0 0 0
98 68,440 0 73,000 NAP NAP
99 0 0 49,660 NAP NAP
100 0 0 0 0 0
101 43,865 0 68,075 NAP NAP
102 0 0 0 0 0
103 25,004 0 8,899 100,000 90,000
104 13,074 150,000 17,287 0 0 8,875
105 10,055 0 12,262 0 91,113
106 31,813 0 27,600 NAP NAP
107 0 0 0 0 0
108 0 0 28,161 0 82,825
109 0 0 288,183 NAP NAP
110 0 0 0 0 0
111 33,128 0 31,500 NAP NAP
112 64,947 0 4% of Gross Revenues NAP NAP 26,703
113 10,210 0 7,030 50,000 50,000
114 0 0 62,000 NAP NAP
115 18,228 0 16,250 NAP NAP
116 5,934 0 4,448 0 22,239
117 0 0 0 NAP NAP 8,750
118 12,100 0 2,424 0 18,289
119 20,447 0 4% of Gross Revenues NAP NAP
120 5,577 0 6,054 150,000 44,913
121 169,215 0 0 NAP NAP
122 0 0 0 0 0
123 47,327 30,000 5,452 0 31,509 32,000
0
124 0 0 5,273 0 0
125 0 0 700 0 0
126 0 0 700 0 0
127 72,486 0 6,183 0 15,000
128 0 0 19,264 0 0 41,778
129 25,004 0 23,000 NAP NAP
130 0 18,750 0 0 0
131 22,691 0 0 0 0
132 15,622 0 12,622 0 50,469 2,500
133 0 0 4% of Gross Revenues NAP NAP
134 27,913 0 34,000 NAP NAP
135 0 0 0 0 0
136 13,767 0 4,665 0 18,659
137 85,435 0 4% of Gross Revenues NAP NAP
138 0 0 64,176 NAP NAP
139 10,118 0 1,840 40,000 0
140 0 65,000 5,899 0 30,997
141 966 0 0 0 0
142 0 0 0 0 0
143 11,532 0 17,100 NAP NAP
144 85,435 0 4% of Gross Revenues NAP NAP
145 17,812 0 63,472 NAP NAP
146 38,380 0 2,420 105,000 15,000
147 0 0 0 0 0
148 19,933 0 4,951 0 16,503
149 0 0 1,159 0 0
150 0 0 0 0 0
151 0 0 0 0 0
152 14,427 0 7,207 0 36,036 15,000
153 1,569 0 0 0 0
154 5,468 0 1,763 0 0
155 0 0 2,352 0 0
156 5,835 0 2,255 0 14,500
157 9,874 0 6,165 0 0
158 5,144 0 4,248 0 20,000
159 21,961 0 34,752 NAP NAP 150,025
160 0 0 10,813 0 54,064
161 0 0 3,000 0 0
162 62,245 0 31,500 NAP NAP
163 3,586 0 0 0 0
164 0 0 1,789 0 0 2,625
165 0 0 1,677 0 0 3,813
166 5,637 0 11,010 NAP NAP 27,250
INITIAL
ENVIRONMENTAL HOLDBACK
LOAN NUMBER DEPOSIT RESERVE LOC
------------------------------------------------------------------------------------------------------------------------------------
1 Deferred Maintenance Reserve is in the form of a LOC
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.70
1.71
1.72
1.73
1.74
1.75
1.76
1.77
1.78
1.79
1.80
1.81
1.82
1.83
1.84
1.85
1.86
1.87
1.88
1.89
1.90
1.91
1.92
1.93
1.94
1.95
1.96
1.97
1.98
1.99
1.100
1.101
1.102
1.103
1.104
1.105
1.106
1.107
1.108
1.109
1.110
1.111
1.112
2 Replacement Reserve and TI/LC Reserve are in the form of LOCs. In addition,
Borrower delivered to Lender multiple letters of credit at closing that
total $1,533,215 to cover gap rent. The amount of money in the escrow will be reduced on
an annual basis, down to $917,060, $376,018, and $0 on May 11 of 2007, 2008,
and 2009 respectively.
3
4
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5
5.1
5.2
6
7
8 712,500
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23 1,213,500
24
25
26 3,263,000
27
28 1,530,000
29
30
31
32
33
34
35
36
37 5,700,000
38 1,600,000
39
40
41
42 1,250
43
44 Replacement Reserve is in the form of AO275a LOC
45
46
47
48
49
50
51
52
53
54
Borrower has posted a Letter of Credit for $1,031,250 (125% of the engineer's estimate)
that will secure either hooking up the property to the public sewer or replacing the
existing septic system. Letter of credit shall not be renewed beyond February 16, 2009.
Letter of credit will be released upon property being hooked up to the public sewer or
replacement of the existing septic system.
55
56 Letter of Credit in the amount of $410,000
57
58
59
60
61
62
63
64
65
65.1
65.2
65.3
66
67
68 74,500
69
70
70.1
70.2
71
72 901,000 Holdback Reserve is in the form of a LOC
73
74
74.1
74.2
75
75.1
75.2
76
77
78
79
80 65,000
81
82
83
84
85
86 50,000
87 26,000
88
89
90
91
92
93
94
95
96
97
98 12,300
99
100
101
102
103
104 23,000
105
106 50,000
107
108
109
110
111
112
113
114
115
116
117
118
119
120 394,000
121
122
123 7,250
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139 TI/LC reserve is in the form of a LOC
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
LOAN NUMBER ENVIRONMENTAL INSURANCE POLICY
------------------------------------------------------------------------------------
1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.70
1.71
1.72
1.73
1.74
1.75
1.76
1.77
1.78
1.79
1.80
1.81
1.82
1.83
1.84
1.85
1.86
1.87
1.88
1.89
1.90
1.91
1.92
1.93
1.94
1.95
1.96
1.97
1.98
1.99
1.100
1.101
1.102
1.103
1.104
1.105
1.106
1.107
1.108
1.109
1.110
1.111
1.112
2
3
4
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5
5.1
5.2
6
7 Yes, Lender's Protection Policy in lieu of Environmental Indemnity.
8
9
10
11
12
13
14
15
16
17
18
19
20
21 Yes, Environmental Insurance was obtained in lieu of a Phase II Report.
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
65.1
65.2
65.3
66
67
68
69
70
70.1
70.2
71
72
73
74
74.1
74.2
75
75.1
75.2
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142 Yes, Underground Storage Tank Liability Policy
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162 Yes, in lieu of a Phase I Environmental Report
163
164
165
166
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
NONE.
II-1
SCHEDULE III
MORTGAGE LOANS AS TO WHICH THE RELATED MORTGAGED PROPERTY IS
COVERED BY A LENDER'S ENVIRONMENTAL INSURANCE POLICY
LOAN NUMBER MORTGAGE LOAN SELLER PROPERTY NAME
-------------------------------------------------------------
21 PNC Bank Bank of America Plaza
162 PNC Bank Park Westwood Apartments
III-1
SCHEDULE IV
CLASS A-SB PLANNED PRINCIPAL BALANCE
V-1
CLASS A-SB PLANNED PRINCIPAL BALANCE SCHEDULE
CLASS A-SB
DISTRIBUTION DATE PLANNED PRINCIPAL BALANCE
----------------- -------------------------
07/15/2006 $135,184,000.00
08/15/2006 $135,184,000.00
09/15/2006 $135,184,000.00
10/15/2006 $135,184,000.00
11/15/2006 $135,184,000.00
12/15/2006 $135,184,000.00
01/15/2007 $135,184,000.00
02/15/2007 $135,184,000.00
03/15/2007 $135,184,000.00
04/15/2007 $135,184,000.00
05/15/2007 $135,184,000.00
06/15/2007 $135,184,000.00
07/15/2007 $135,184,000.00
08/15/2007 $135,184,000.00
09/15/2007 $135,184,000.00
10/15/2007 $135,184,000.00
11/15/2007 $135,184,000.00
12/15/2007 $135,184,000.00
01/15/2008 $135,184,000.00
02/15/2008 $135,184,000.00
03/15/2008 $135,184,000.00
04/15/2008 $135,184,000.00
05/15/2008 $135,184,000.00
06/15/2008 $135,184,000.00
07/15/2008 $135,184,000.00
08/15/2008 $135,184,000.00
09/15/2008 $135,184,000.00
10/15/2008 $135,184,000.00
11/15/2008 $135,184,000.00
12/15/2008 $135,184,000.00
01/15/2009 $135,184,000.00
02/15/2009 $135,184,000.00
03/15/2009 $135,184,000.00
04/15/2009 $135,184,000.00
05/15/2009 $135,184,000.00
06/15/2009 $135,184,000.00
07/15/2009 $135,184,000.00
08/15/2009 $135,184,000.00
09/15/2009 $135,184,000.00
10/15/2009 $135,184,000.00
11/15/2009 $135,184,000.00
12/15/2009 $135,184,000.00
01/15/2010 $135,184,000.00
02/15/2010 $135,184,000.00
03/15/2010 $135,184,000.00
04/15/2010 $135,184,000.00
05/15/2010 $135,184,000.00
06/15/2010 $135,184,000.00
07/15/2010 $135,184,000.00
08/15/2010 $135,184,000.00
09/15/2010 $135,184,000.00
10/15/2010 $135,184,000.00
11/15/2010 $135,184,000.00
12/15/2010 $135,184,000.00
01/15/2011 $135,184,000.00
02/15/2011 $135,184,000.00
03/15/2011 $135,184,000.00
04/15/2011 $135,183,684.12
05/15/2011 $133,162,408.31
06/15/2011 $131,345,745.31
07/15/2011 $129,249,485.57
08/15/2011 $127,400,501.69
09/15/2011 $125,542,219.62
10/15/2011 $123,417,709.77
11/15/2011 $121,539,391.42
12/15/2011 $119,395,393.67
01/15/2012 $117,496,839.36
02/15/2012 $115,588,736.44
03/15/2012 $113,160,501.93
04/15/2012 $111,230,575.63
05/15/2012 $109,036,382.36
06/15/2012 $107,085,705.72
07/15/2012 $104,871,330.01
08/15/2012 $ 99,703,936.15
09/15/2012 $ 97,727,632.17
10/15/2012 $ 95,488,976.17
11/15/2012 $ 93,491,458.35
12/15/2012 $ 91,232,169.06
01/15/2013 $ 88,732,169.05
02/15/2013 $ 86,703,066.74
03/15/2013 $ 84,203,018.78
04/15/2013 $ 82,216,980.08
05/15/2013 $ 79,981,156.65
06/15/2013 $ 77,973,895.39
07/15/2013 $ 75,717,430.32
08/15/2013 $ 73,688,735.14
09/15/2013 $ 71,649,843.91
10/15/2013 $ 69,362,614.67
11/15/2013 $ 52,941,974.53
12/15/2013 $ 50,633,591.67
01/15/2014 $ 48,550,985.99
02/15/2014 $ 46,457,912.08
CLASS A-SB
DISTRIBUTION DATE PLANNED PRINCIPAL BALANCE
----------------- -------------------------
03/15/2014 $43,645,315.50
04/15/2014 $41,527,566.39
05/15/2014 $39,163,637.67
06/15/2014 $37,023,354.07
07/15/2014 $34,637,507.66
08/15/2014 $32,474,465.09
09/15/2014 $30,300,548.05
10/15/2014 $27,881,988.78
11/15/2014 $25,684,977.72
12/15/2014 $23,243,956.53
01/15/2015 $21,023,621.37
02/15/2015 $18,792,122.39
03/15/2015 $15,853,865.26
04/15/2015 $13,596,357.30
05/15/2015 $11,096,494.97
06/15/2015 $ 4,809,946.95
07/15/2015 $ 2,295,971.34
08/15/2015 and $ 0.00
thereafter
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-SB] [A-3] [A-1A] CERTIFICATE
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4
CLASS [A-1] [A-2] [A-SB] [A-3] [A-1A] COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: June 1, 2006
Cut-off Date: Individually and collectively, as the context may require, with
respect to each Mortgage Loan having a Due Date in June 2006, such Due Date and,
with respect to each Mortgage Loan having its first Due Date in July 2006, June
1, 2006.
Closing Date: June 29, 2006
First Distribution Date: July 17, 2006
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Company, Inc.
Certificate No. [A-1] [A-2] [A-SB] [A-3] [A-1A]-___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $ ________________
Class Principal Balance of all the Class [A-1] [A-2] [A-SB] [A-3] [A-1A]
Certificates as of the Closing Date: $ ______________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,263,536,038
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
ISIN: _____________
A-1-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., MIDLAND LOAN SERVICES, INC., X.X. XXXXXX
COMPANY, INC., LASALLE BANK NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.] [_____________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the principal balance of this Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal balance of all the
Certificates of the same Class as this Certificate (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
A-1-2
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Citigroup Commercial Mortgage Securities Inc., as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc., as master servicer (the "Master Servicer", which
term includes any successor entity under the Agreement), X.X. Xxxxxx Company,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (or, in the case of the initial Distribution Date, no later
than the Closing Date) (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in the
notice to Certificateholders of such final distribution. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
A-1-3
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Loan Combination
Custodial Accounts, the Distribution Account and, if established, the REO
Accounts may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all
A-1-4
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the respective obligations and responsibilities under the
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than certain obligations of the Trustee set forth in the
Agreement) shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required under the Agreement to be so paid on the Distribution Date following
the earliest to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price determined as
provided in the Agreement, (B) following the date on which the aggregate
Certificate Principal Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, the exchange by the remaining
Certificateholders (exclusive of the Class R Certificateholders) of their
Certificates for all Mortgage Loans and each REO Property remaining in the Trust
Fund, and (C) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) to the Trustee, the Master Servicer, the Special Servicer
and the officers, directors, employees and agents of each of them of all amounts
which may have become due and owing to any of them under the Agreement. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than
approximately 1.0% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of any REMIC Pool as a REMIC, without the consent of the Holders of
any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any
A-1-5
conflicts of law principles of such State (other than the provisions of Section
5-1401 of the New York General Obligations Law), and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-SB] [A-3] [A-1A] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-1-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________) and all applicable statements and notices should be mailed to
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS X CERTIFICATE
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: June 1, 2006
Cut-off Date: Individually and collectively, as the context may require, with
respect to each Mortgage Loan having a Due Date in June 2006, such Due Date and,
with respect to each Mortgage Loan having its first Due Date in July 2006, June
1, 2006.
Closing Date: June 29, 2006
First Distribution Date: July 17, 2006
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Company, Inc.
Certificate No. X-___
Initial Certificate Notional Amount of this Certificate as of the Closing Date:
$____________
Class Notional Amount of all the Class X Certificates as of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,263,536,038
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
ISIN: _____________
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[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF 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 REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., MIDLAND LOAN SERVICES, INC., X.X. XXXXXX
COMPANY, INC., LASALLE BANK NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE
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A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT ENTITLE THE HOLDER HEREOF TO ANY
DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS
OF INTEREST ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THIS
CERTIFICATE TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER
THE SECURITIES ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE
SHALL BE ENTITLED TO RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
This certifies that [CEDE & CO.] [________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Citigroup Commercial Mortgage Securities Inc., as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc., as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable
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Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to the Record Date for such distribution (or, in the case of
the initial Distribution Date, no later than the Closing Date) (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution in respect of this Certificate will be made after
due notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Loan Combination
Custodial Accounts, the Distribution Account and, if established, the REO
Accounts may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates, the
initial Transfer of this Certificate by the Depositor, the Initial Purchaser or
any of their respective Affiliates or, as contemplated by Section 5.03 of the
Agreement, if this Certificate is a Global Certificate, a Transfer of this
Certificate to a successor Depository), then the Certificate Registrar shall
refuse to register such Transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such Transfer substantially in the form
A-2-4
attached as Exhibit G-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit G-2 to the Agreement or as Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that the prospective Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and that such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If any Transferee of this Certificate
does not, in connection with the subject Transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit G-2 or Exhibit G-3
attached to the Agreement are, with respect to the subject Transfer, true and
correct. Definitive Non-Registered Certificates may only be held by Qualified
Institutional Buyers and Institutional Accredited Investors.
No beneficial interest in a Rule 144A Global Certificate for any Class
of Book-Entry Non-Registered Certificates may be held by any Person that is not
a Qualified Institutional Buyer. If this Certificate constitutes a Rule 144A
Global Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, the Initial Purchaser or any of their respective Affiliates), then
the Certificate Owner desiring to effect such Transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit G-4 to the Agreement,
or (ii) an Opinion of Counsel to the effect that the prospective Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in Exhibit G-4 attached to the Agreement are, with respect to the
subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee, as transfer agent for the
Depository, to approve the debit of the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, and approve the
credit of the account of a Depository Participant by a denomination of interests
in such Regulation S Global Certificate, that is equal to the denomination of
beneficial interests in the subject
A-2-5
Class of Book-Entry Non-Registered Certificates to be transferred. Upon delivery
to the Certificate Registrar and the Trustee of such certifications and such
orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of the Depository, shall reduce the denomination of the
Rule 144A Global Certificate in respect of the subject Class of Book-Entry
Non-Registered Certificates, and increase the denomination of the Regulation S
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by a United States
Securities Person. Any Certificate Owner desiring to effect any Transfer of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from such Certificate
Owner's prospective Transferee a certificate substantially in the form set forth
in Exhibit G-5 to the Agreement to the effect that such Transferee is not a
United States Securities Person. If any Transferee of an interest in the
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the certification described in the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit G-5 to the Agreement are, with respect to
the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such Transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph above this paragraph and (ii) delivers or causes to be delivered
to the Certificate Registrar and the Trustee (A) a certificate from such
Certificate Owner confirming its ownership of the beneficial interests in the
subject Class of Book-Entry Non-Registered Certificates to be transferred, (B) a
copy of the certificate or Opinion of Counsel to be obtained by such Certificate
Owner from its prospective Transferee in accordance with the second sentence of
the third paragraph above this paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Trustee of such certification(s) and/or Opinion of Counsel and
such orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of the Depository, shall reduce the denomination of the
Regulation S Global Certificate in respect of the subject Class of Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate
A-2-6
upon delivery to the Certificate Registrar and the Trustee of (i) such
certifications and/or opinions as are contemplated by the fifth paragraph above
this paragraph and (ii) such written orders and instructions as are required
under the applicable procedures of the Depository to direct the Trustee to debit
the account of a Depository Participant by the denomination of the transferred
interests in such Global Certificate. Upon delivery to the Certificate Registrar
and the Trustee of the certifications and/or opinions contemplated by the fifth
paragraph above this paragraph, the Trustee, subject to and in accordance with
the applicable procedures of the Depository, shall reduce the denomination of
the subject Global Certificate by the denomination of the transferred interests
in such Global Certificate, and shall cause a Definitive Certificate of the same
Class as such Global Certificate, and in a denomination equal to the reduction
in the denomination of such Global Certificate, to be executed, authenticated
and delivered in accordance with the Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Trustee, the Certificate Registrar, the Depositor and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Non-Registered Certificates or any Transfer of this Certificate
or any interest herein by the Depositor or any of its Affiliates or, as
contemplated by Section 5.03 of the Agreement, if this Certificate constitutes a
Global Certificate, any Transfer of this Certificate to a successor Depository,
the Certificate Registrar shall refuse to register the Transfer of this
Certificate unless it has received from the prospective Transferee, and, if this
Certificate constitutes a Global Certificate, any Certificate Owner transferring
an interest herein shall be required to obtain from its prospective Transferee,
one of the following: (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate or such interest herein by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by reason of
Sections I and III of Department of Labor Prohibited Transaction Class Exemption
95-60; or (iii) alternatively, if this Certificate is rated in one of the four
highest generic rating categories by either Rating Agency, and this Certificate
or an interest herein is being acquired by or on behalf of a Plan in reliance on
the Exemption, a certification to the effect that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of
A-2-7
Regulation D of the Securities Act, (Y) is not sponsored (within the meaning of
Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage Loans
constituting more than 5% of the aggregate unamortized principal balance of all
the Mortgage Loans determined as of the Closing Date, or by any Affiliate of
such Person, and (Z) agrees that it will obtain from each of its Transferees
that are Plans a written representation that such Transferee satisfies the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) alternatively, a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
or such Certificate Owner, as the case may be, that such Transfer will not
result in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code
or result in the imposition of an excise tax under Section 4975 of the Code. The
forms of certification attached to the Agreement as Exhibit H-1 (in the case of
Definitive Non-Registered Certificates) and Exhibit H-2 (in the case of
ownership interests in Book-Entry Non-Registered Certificates) are acceptable
for purposes of the preceding sentence. If any Transferee of this Certificate or
any interest herein does not, in connection with the subject Transfer, deliver
to the Certificate Registrar (if this Certificate constitutes a Definitive
Certificate) or the Transferor (if this Certificate constitutes a Global
Certificate) a certification and/or Opinion of Counsel as required by the second
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
A-2-8
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents 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 or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the respective obligations and responsibilities under the
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than certain obligations of the Trustee set forth in the
Agreement) shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required under the Agreement to be so paid on the Distribution Date following
the earliest to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price determined as
provided in the Agreement, (B) following the date on which the aggregate
Certificate Principal Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, the exchange by the remaining
Certificateholders (exclusive of the Class R Certificateholders) of their
Certificates for all Mortgage Loans and each REO Property remaining in the Trust
Fund, and (C) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) to the Trustee, the Master Servicer, the Special Servicer
and the officers, directors, employees and agents of each of them of all amounts
which may have become due and owing to any of them under the Agreement. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than
approximately 1.0% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of any REMIC Pool as a REMIC, without the consent of the Holders of
any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
A-2-9
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such State
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-2-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-2-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
________________________________________________________________________________
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
A-2-12
[FOR BOOK ENTRY CERTIFICATES ONLY]
SCHEDULE A
SCHEDULE OF EXCHANGES IN GLOBAL SECURITY
The following exchanges of a part of this Global Security have been made:
Signature of
Amount of Authorized
Amount of Increase in Principal Amount of Representative of
Decrease in Principal Principal Amount this Global Security Trustee or
Amount of this of this Global following such securities
Date of Exchange Global Security Security decrease (or increase) Custodian
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
X-0-00
XXXXXXX X-0
FORM OF CLASS [A-M] [A-J] [B] [C] [D] CERTIFICATE
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4
CLASS [A-M] [A-J] [B] [C] [D] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: June 1, 2006
Cut-off Date: Individually and collectively, as the context may require, with
respect to each Mortgage Loan having a Due Date in June 2006, such Due Date and,
with respect to each Mortgage Loan having its first Due Date in July 2006,
June 1, 2006.
Closing Date: June 29, 2006
First Distribution Date: July 17, 2006
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Company, Inc.
Certificate No. [A-M] A-J] [B] [C] [D] -___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $___________________
Class Principal Balance of all the Class [A-M] [A-J] [B] [C] [D] Certificates as
of the Closing Date: $________________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,263,536,038
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
ISIN: __________________
A-3-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF 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.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., MIDLAND LOAN SERVICES, INC., X.X. XXXXXX
COMPANY, INC., LASALLE BANK NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.] [________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its
A-3-2
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal balance of all the Certificates of the same Class as this Certificate
(their "Class Principal Balance") as of the Closing Date) in that certain
beneficial ownership interest in the Trust evidenced by all the Certificates of
the same Class as this Certificate. The Trust was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), between Citigroup Commercial Mortgage Securities Inc.,
as depositor (the "Depositor", which term includes any successor entity under
the Agreement), Midland Loan Services, Inc., as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement) and LaSalle Bank National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (or, in the case of the initial Distribution Date, no later
than the Closing Date) (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in the
notice to Certificateholders of such final distribution. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-3-3
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Loan Combination
Custodial Accounts, the Distribution Account and, if established, the REO
Accounts may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
A-3-4
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents 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 or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the respective obligations and responsibilities under the
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than certain obligations of the Trustee set forth in the
Agreement) shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required under the Agreement to be so paid on the Distribution Date following
the earliest to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price determined as
provided in the Agreement, (B) following the date on which the aggregate
Certificate Principal Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, the exchange by the remaining
Certificateholders (exclusive of the Class R Certificateholders) of their
Certificates for all Mortgage Loans and each REO Property remaining in the Trust
Fund, and (C) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) to the Trustee, the Master Servicer, the Special Servicer
and the officers, directors, employees and agents of each of them of all amounts
which may have become due and owing to any of them under the Agreement. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than
approximately 1.0% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of any REMIC Pool as a REMIC, without the consent of the Holders of
any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
A-3-5
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such State
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-M] [A-J] [B] [C] [D] Certificates referred
to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-3-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________for the account of ______________________________________
_________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [E] [F] [G] [H] CERTIFICATE
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4
CLASS [E] [F] [G] [H] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: June 1, 2006
Cut-off Date: Individually and collectively, as the context may require, with
respect to each Mortgage Loan having a Due Date in June 2006, such Due Date and,
with respect to each Mortgage Loan having its first Due Date in July 2006, June
1, 2006.
Closing Date: June 29, 2006
First Distribution Date: July 17, 2006
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Company, Inc.
Certificate No. [E] [F] [G] [H] -___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $____________
Class Principal Balance of all the Class [E] [F] [G] [H] Certificates as of the
Closing Date: $____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,263,536,038
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
ISIN: __________________
A-4-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF 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 REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., MIDLAND LOAN SERVICES, INC., X.X. XXXXXX
COMPANY, INC., LASALLE BANK NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-4-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THIS
CERTIFICATE TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER
THE SECURITIES ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE
SHALL BE ENTITLED TO RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
This certifies that [CEDE & CO.] [________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between
Citigroup Commercial Mortgage Securities Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Midland Loan
Services, Inc., as master servicer (the "Master Servicer", which term includes
any successor entity under the Agreement), X.X. Xxxxxx Company, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), and LaSalle Bank National Association, as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All
A-4-3
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the Record Date for such distribution (or, in the case of the initial
Distribution Date, no later than the Closing Date) (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution in respect of this Certificate (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to this Certificate) will be made after
due notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in the notice to Certificateholders of such final distribution.
Also notwithstanding the foregoing, any distribution that may be made with
respect to this Certificate in reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to this Certificate, which reimbursement
is to occur after the date on which this Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Loan Combination
Custodial Accounts, the Distribution Account and, if established, the REO
Accounts may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
A-4-4
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates, the
initial Transfer of this Certificate by the Depositor, the Initial Purchaser or
any of their respective Affiliates or, as contemplated by Section 5.03 of the
Agreement, if this Certificate is a Global Certificate, a Transfer of this
Certificate to a successor Depository), then the Certificate Registrar shall
refuse to register such Transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such Transfer substantially in the form attached as Exhibit
G-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit G-2 to the
Agreement or as Exhibit G-3 to the Agreement; or (ii) an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar to the effect that the
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer and that such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit G-2 or Exhibit G-3 attached to the Agreement are, with
respect to the subject Transfer, true and correct. Definitive Non-Registered
Certificates may only be held by Qualified Institutional Buyers and
Institutional Accredited Investors.
No beneficial interest in a Rule 144A Global Certificate for any Class
of Book-Entry Non-Registered Certificates may be held by any Person that is not
a Qualified Institutional Buyer. If this Certificate constitutes a Rule 144A
Global Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, the Initial Purchaser or any of their respective Affiliates), then
the Certificate Owner desiring to effect such Transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit G-4 to the Agreement,
or (ii) an Opinion of Counsel to the effect that the prospective Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the second preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit G-4 attached to the Agreement are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S
A-4-5
Global Certificate for such Class of Certificates, provided that the Certificate
Owner desiring to effect such Transfer (i) complies with the requirements for
Transfers of interests in such Regulation S Global Certificate set forth in the
following paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee,
as transfer agent for the Depository, to approve the debit of the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and approve the credit of the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, that is
equal to the denomination of beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred. Upon delivery to the
Certificate Registrar and the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by a United States
Securities Person. Any Certificate Owner desiring to effect any Transfer of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from such Certificate
Owner's prospective Transferee a certificate substantially in the form set forth
in Exhibit G-5 to the Agreement to the effect that such Transferee is not a
United States Securities Person. If any Transferee of an interest in the
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the certification described in the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit G-5 to the Agreement are, with respect to
the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such Transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph above this paragraph and (ii) delivers or causes to be delivered
to the Certificate Registrar and the Trustee (A) a certificate from such
Certificate Owner confirming its ownership of the beneficial interests in the
subject Class of Book-Entry Non-Registered Certificates to be transferred, (B) a
copy of the certificate or Opinion of Counsel to be obtained by such Certificate
Owner from its prospective Transferee in accordance with the second sentence of
the third paragraph above this paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
A-4-6
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Trustee of such certification(s) and/or Opinion of Counsel and
such orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of the Depository, shall reduce the denomination of the
Regulation S Global Certificate in respect of the subject Class of Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fifth paragraph above this paragraph and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the fifth paragraph above this paragraph, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with the Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Trustee, the Certificate Registrar, the Depositor and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Non-Registered Certificates or any Transfer of this Certificate
or any interest herein by the Depositor or any of its Affiliates or, as
contemplated by Section 5.03 of the Agreement, if this Certificate constitutes a
Global Certificate, any Transfer of this Certificate to a successor Depository,
the Certificate Registrar shall refuse to register the Transfer of this
Certificate unless it has received from
A-4-7
the prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, by reason of Sections I and III of
Department of Labor Prohibited Transaction Class Exemption 95-60; or (iii) if
this Certificate is rated in one of the four highest generic rating categories
by either Rating Agency, and this Certificate or an interest herein is being
acquired by or on behalf of a Plan in reliance on the Exemption, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any
Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such Transferee
satisfies the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) alternatively, a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such Transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code. The forms of certification attached to the Agreement as Exhibit H-1 (in
the case of Definitive Non-Registered Certificates) and Exhibit H-2 (in the case
of ownership interests in Book-Entry Non-Registered Certificates) are acceptable
for purposes of the preceding sentence. If any Transferee of this Certificate or
any interest herein does not, in connection with the subject Transfer, deliver
to the Certificate Registrar (if this Certificate constitutes a Definitive
Certificate) or the Transferor (if this Certificate constitutes a Global
Certificate) a certification and/or Opinion of Counsel as required by the second
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
A-4-8
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents 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 or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the respective obligations and responsibilities under the
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than certain obligations of the Trustee set forth in the
Agreement) shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required under the Agreement to be so paid on the Distribution Date following
the earliest to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price determined as
provided in the Agreement, (B) following the date on which the aggregate
Certificate Principal Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, the exchange by the remaining
Certificateholders (exclusive of the Class R Certificateholders) of their
Certificates for all Mortgage Loans and each REO Property remaining in the Trust
Fund, and (C) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) to the Trustee, the Master Servicer, the Special Servicer
and the officers, directors, employees and agents of each of them of all amounts
which may have become due and owing to any of them under the Agreement. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than
approximately 1.0% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and
A-4-9
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of any REMIC Pool as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such State
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [E] [F] [G] [H] Certificates referred to in
the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-4-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
____________________________________________________________ for the account of
_____________________________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
A-4-12
[FOR BOOK ENTRY CERTIFICATES ONLY]
SCHEDULE A
SCHEDULE OF EXCHANGES IN GLOBAL SECURITY
The following exchanges of a part of this Global Security have been made:
Signature of
Authorized
Amount of Amount of Principal Amount of Representative of
Decrease in Principal Increase in Principal this Global Security Trustee or
Amount of this Global Amount of this following such securities
Date of Exchange Security Global Security decrease (or increase) Custodian
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
X-0-00
XXXXXXX X-0
FORM OF CLASS [J] [K] [L] [M] [N] [O] [P] CERTIFICATE
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4
CLASS [J] [K] [L] [M] [N] [O] [P] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: June 1, 2006
Cut-off Date: Individually and collectively, as the context may require, with
respect to each Mortgage Loan having a Due Date in June 2006, such Due Date and,
with respect to each Mortgage Loan having its first Due Date in July 2006, June
1, 2006.
Closing Date: June 29, 2006
First Distribution Date: July 17, 2006
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Company, Inc.
Certificate No. [J] [K] [L] [M] [N] [O] [P] -___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $_______________
Class Principal Balance of all the Class [J] [K] [L] [M] [N] [O] [P]
Certificates as of the Closing Date: $____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,263,536,038
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
ISIN:__________________
A-5-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF 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 REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., MIDLAND LOAN SERVICES, INC., X.X. XXXXXX
COMPANY, INC., LASALLE BANK NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-5-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THIS
CERTIFICATE TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER
THE SECURITIES ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE
SHALL BE ENTITLED TO RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
This certifies that [CEDE & CO.] [________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between
Citigroup Commercial Mortgage Securities Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Midland Loan
Services, Inc., as master servicer (the "Master Servicer", which term includes
any successor entity under the Agreement), X.X. Xxxxxx Company, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), and LaSalle Bank National Association, as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All
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distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the Record Date for such distribution (or, in the case of the initial
Distribution Date, no later than the Closing Date) (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution in respect of this Certificate (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to this Certificate) will be made after
due notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in the notice to Certificateholders of such final distribution.
Also notwithstanding the foregoing, any distribution that may be made with
respect to this Certificate in reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to this Certificate, which reimbursement
is to occur after the date on which this Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Loan Combination
Custodial Accounts, the Distribution Account and, if established, the REO
Accounts may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates, the
initial Transfer of this Certificate by the Depositor, the Initial Purchaser or
any of their respective Affiliates or, as contemplated by Section 5.03 of the
Agreement, if this Certificate is a Global Certificate, a Transfer of this
Certificate to a successor Depository), then the Certificate Registrar shall
refuse to register such Transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such Transfer substantially in the form attached as Exhibit
G-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit G-2 to the
Agreement or as Exhibit G-3 to the Agreement; or (ii) an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar to the effect that the
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer and that such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit G-2 or Exhibit G-3 attached to the Agreement are, with
respect to the subject Transfer, true and correct. Definitive Non-Registered
Certificates may only be held by Qualified Institutional Buyers and
Institutional Accredited Investors.
No beneficial interest in a Rule 144A Global Certificate for any Class
of Book-Entry Non-Registered Certificates may be held by any Person that is not
a Qualified Institutional Buyer. If this Certificate constitutes a Rule 144A
Global Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, the Initial Purchaser or any of their respective Affiliates), then
the Certificate Owner desiring to effect such Transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit G-4 to the Agreement,
or (ii) an Opinion of Counsel to the effect that the prospective Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the second preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit G-4 attached to the Agreement are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S
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Global Certificate for such Class of Certificates, provided that the Certificate
Owner desiring to effect such Transfer (i) complies with the requirements for
Transfers of interests in such Regulation S Global Certificate set forth in the
following paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee,
as transfer agent for the Depository, to approve the debit of the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and approve the credit of the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, that is
equal to the denomination of beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred. Upon delivery to the
Certificate Registrar and the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by a United States
Securities Person. Any Certificate Owner desiring to effect any Transfer of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from such Certificate
Owner's prospective Transferee a certificate substantially in the form set forth
in Exhibit G-5 to the Agreement to the effect that such Transferee is not a
United States Securities Person. If any Transferee of an interest in the
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the certification described in the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit G-5 to the Agreement are, with respect to
the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such Transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph above this paragraph and (ii) delivers or causes to be delivered
to the Certificate Registrar and the Trustee (A) a certificate from such
Certificate Owner confirming its ownership of the beneficial interests in the
subject Class of Book-Entry Non-Registered Certificates to be transferred, (B) a
copy of the certificate or Opinion of Counsel to be obtained by such Certificate
Owner from its prospective Transferee in accordance with the second sentence of
the third paragraph above this paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
A-5-6
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Trustee of such certification(s) and/or Opinion of Counsel and
such orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of the Depository, shall reduce the denomination of the
Regulation S Global Certificate in respect of the subject Class of Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fifth paragraph above this paragraph and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the fifth paragraph above this paragraph, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with the Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Trustee, the Certificate Registrar, the Depositor and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Non-Registered Certificates or any Transfer of this Certificate
or any interest herein by the Depositor or any of its Affiliates or, as
contemplated by Section 5.03 of the Agreement, if this Certificate constitutes a
Global Certificate, any Transfer of this Certificate to a successor Depository,
the Certificate Registrar shall refuse to register the Transfer of this
Certificate unless it has received from
A-5-7
the prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, by reason of Sections I and III of
Department of Labor Prohibited Transaction Class Exemption 95-60; or (iii) if
this Certificate is rated in one of the four highest generic rating categories
by either Rating Agency, and this Certificate or an interest herein is being
acquired by or on behalf of a Plan in reliance on the Exemption, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any
Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such Transferee
satisfies the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) alternatively, a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such Transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code. The forms of certification attached to the Agreement as Exhibit H-1 (in
the case of Definitive Non-Registered Certificates) and Exhibit H-2 (in the case
of ownership interests in Book-Entry Non-Registered Certificates) are acceptable
for purposes of the preceding sentence. If any Transferee of this Certificate or
any interest herein does not, in connection with the subject Transfer, deliver
to the Certificate Registrar (if this Certificate constitutes a Definitive
Certificate) or the Transferor (if this Certificate constitutes a Global
Certificate) a certification and/or Opinion of Counsel as required by the second
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
A-5-8
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents 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 or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the respective obligations and responsibilities under the
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than certain obligations of the Trustee set forth in the
Agreement) shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required under the Agreement to be so paid on the Distribution Date following
the earliest to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price determined as
provided in the Agreement, (B) following the date on which the aggregate
Certificate Principal Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, the exchange by the remaining
Certificateholders (exclusive of the Class R Certificateholders) of their
Certificates for all Mortgage Loans and each REO Property remaining in the Trust
Fund, and (C) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) to the Trustee, the Master Servicer, the Special Servicer
and the officers, directors, employees and agents of each of them of all amounts
which may have become due and owing to any of them under the Agreement. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than
approximately 1.0% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and
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upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of any REMIC Pool as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such State
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [J] [K] [L] [M] [N] [O] [P] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------
Authorized Representative
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
___________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
A-5-12
[FOR BOOK ENTRY CERTIFICATES ONLY]
SCHEDULE A
SCHEDULE OF EXCHANGES IN GLOBAL SECURITY
The following exchanges of a part of this Global Security have been made:
Signature of
Amount of Authorized
Amount of Increase in Principal Amount of Representative of
Decrease in Principal Principal Amount this Global Security Trustee or
Amount of this of this Global following such securities
Date of Exchange Global Security Security decrease (or increase) Custodian
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
X-0-00
XXXXXXX X-0
FORM OF CLASS R CERTIFICATE
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4
CLASS R COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Date of Pooling and Servicing Agreement: June 1, 2006
Cut-off Date: Individually and collectively, as the context may require, with
respect to each Mortgage Loan having a Due Date in June 2006, such Due Date and,
with respect to each Mortgage Loan having its first Due Date in July 2006,
June 1, 2006.
Closing Date: June 29, 2006
First Distribution Date: July 17, 2006
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Company, Inc.
Certificate No. R -___
Percentage Interest evidenced by this Certificate in the related Class: ___%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,263,536,038
Trustee: LaSalle Bank National Association
A-6-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY TO A
QUALIFIED INSTITUTIONAL BUYER (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., MIDLAND LOAN SERVICES, INC., X.X. XXXXXX
COMPANY, INC., LASALLE BANK NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
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This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust evidenced by
all the Certificates of the same Class as this Certificate. The Trust was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between Citigroup
Commercial Mortgage Securities Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Midland Loan Services, Inc.,
as master servicer (the "Master Servicer", which term includes any successor
entity under the Agreement), X.X. Xxxxxx Company, Inc., as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement), and LaSalle Bank National Association, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (or, in the case of the initial Distribution Date, no later
than the Closing Date) (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Loan Combination
Custodial Accounts, the Distribution Account and, if established, the REO
Accounts may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
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The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or the initial Transfer of this Certificate by the Depositor,
the Initial Purchaser or any of their respective Affiliates), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit G-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached as
Exhibit G-2 to the Agreement; or (ii) an Opinion of Counsel reasonably
satisfactory to the Certificate Registrar to the effect that the prospective
Transferee is a Qualified Institutional Buyer and that such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If any Transferee of this Certificate
does not, in connection with the subject Transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in Exhibit G-2 attached to the Agreement
are, with respect to the subject Transfer, true and correct. This Certificate
may only be held by a Qualified Institutional Buyer.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Trustee, the Certificate Registrar, the Depositor and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or
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qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Non-Registered Certificates or any Transfer of this Certificate
by the Depositor, the Initial Purchaser or any of their respective Affiliates,
the Certificate Registrar shall refuse to register the Transfer of this
Certificate unless it has received from the prospective Transferee, either: (i)
a certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) alternatively, a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee that such Transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. The form of
certification attached to the Agreement as Exhibit H-1 is acceptable for
purposes of the preceding sentence. If any Transferee of this Certificate does
not, in connection with the subject Transfer, deliver to the Certificate
Registrar a certification and/or Opinion of Counsel as required by the second
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
Transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the Certificate Registrar of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt, of an affidavit and agreement substantially
in the form attached as Exhibit I-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, and upon which the Certificate Registrar may, in the
absence of actual knowledge by a Responsible Officer of either the Trustee or
the Certificate Registrar to the contrary, conclusively rely, representing and
warranting, among other things, that such
A-6-5
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
that it has historically paid its debts as they have come due, intends to pay
its debts as they come due in the future and intends to pay all taxes associated
with the Class R Certificate as they come due, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if a Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee. In addition, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is an entity classified as a partnership under the Code, the
Certificate Registrar shall not register the transfer of this Certificate unless
at the time of transfer, the Certificate Registrar has actual knowledge that all
of the proposed Transferee's beneficial owners are United States Tax Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (1) to require a Transfer Affidavit and Agreement from
any prospective Transferee to whom such Person attempts to Transfer its
Ownership Interest herein and (2) not to Transfer its Ownership Interest herein
unless it provides to the Certificate Registrar a certificate substantially in
the form attached as Exhibit I-2 to the Agreement stating that, among other
things, it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee. Each Person holding or acquiring an Ownership Interest in
this Certificate, by purchasing such Ownership Interest herein, agrees to give
the Master Servicer and the Trustee written notice that it is a "pass-through
interest holder" within the meaning of temporary Treasury regulations section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Master Servicer the following: (a) written confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current rating of any Class of Certificates; and
(b) an Opinion of Counsel, in form and substance satisfactory to the Trustee and
the Master Servicer, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions (but in no event
at the expense of the Trust Fund), to the effect that doing so will not cause
any REMIC Pool to (1) cease to qualify as a REMIC or (2) be subject to an
entity-level tax caused by the Transfer of a Class R Certificate to a Person
which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Class R Certificate to a Person that is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee of a Class R Certificate
other than a Disqualified Organization, a Plan, a Non-United States Tax Person
or a United States Tax Person with respect to whom income on the Class R
Certificate is allocable to a foreign permanent establishment or fixed base,
within the meaning of an applicable income tax treaty, of such Person or any
other United States Tax Person.
A "Disqualified Organization" is any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of
A-6-6
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization, or any agency or instrumentality
of either of the foregoing, (iii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
or (v) any other Person so designated by the Trustee or the Certificate
Registrar based upon an Opinion of Counsel (which shall not be an expense of the
Trustee) that the holding of an Ownership Interest in a Class R Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates, other than such Person, to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Class R Certificate to such
Person. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of the United States, any State thereof or the District of
Columbia unless in the case of a partnership, Treasury regulations are adopted
that provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States Tax Persons have
the authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a) (30) of the Code (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996,
that are eligible to elect to be treated as United States Tax Persons).
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all
A-6-7
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the respective obligations and responsibilities under the
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than certain obligations of the Trustee set forth in the
Agreement) shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required under the Agreement to be so paid on the Distribution Date following
the earliest to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price determined as
provided in the Agreement, (B) following the date on which the aggregate
Certificate Principal Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, the exchange by the remaining
Certificateholders (exclusive of the Class R Certificateholders) of their
Certificates for all Mortgage Loans and each REO Property remaining in the Trust
Fund, and (C) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) to the Trustee, the Master Servicer, the Special Servicer
and the officers, directors, employees and agents of each of them of all amounts
which may have become due and owing to any of them under the Agreement. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than
approximately 1.0% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of any REMIC Pool as a REMIC, without the consent of the Holders of
any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any
A-6-8
conflicts of law principles of such State (other than the provisions of Section
5-1401 of the New York General Obligations Law), and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-6-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS Y CERTIFICATE
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4
CLASS Y COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Date of Pooling and Servicing Agreement: June 1, 2006
Cut-off Date: Individually and collectively, as the context may require, with
respect to each Mortgage Loan having a Due Date in June 2006, such Due Date and,
with respect to each Mortgage Loan having its first Due Date in July 2006, June
1, 2006.
Closing Date: June 29, 2006
First Distribution Date: July 17, 2006
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Company, Inc.
Certificate No. Y -___
Percentage Interest evidenced by this Certificate in Class Y: ___%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,263,536,038
Trustee: LaSalle Bank National Association
A-7-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CITIGROUP
COMMERCIAL MORTGAGE SECURITIES INC., MIDLAND LOAN SERVICES, INC., X.X. XXXXXX
COMPANY, INC., LASALLE BANK NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD MORTGAGE LOANS SUBJECT TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
This certifies that ________________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust evidenced by
all the Class Y Certificates. The Trust was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), between Citigroup Commercial Mortgage Securities Inc., as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc., as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
A-7-2
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (or, in the case of the
initial Distribution Date, no later than the Closing Date) (the "Record Date"),
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Loan Combination
Custodial Accounts, the Distribution Account and, if established, the REO
Accounts may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
A-7-3
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or the initial Transfer of this Certificate by the Depositor,
the Initial Purchaser or any of their respective Affiliates, then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit G-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit G-2 to the Agreement or as Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that the prospective Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and that such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If any Transferee of this Certificate
does not, in connection with the subject Transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit G-2 or Exhibit G-3
attached to the Agreement are, with respect to the subject Transfer, true and
correct. Definitive Non-Registered Certificates may only be held by Qualified
Institutional Buyers and Institutional Accredited Investors.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Trustee, the Certificate Registrar, the Depositor and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Non-Registered Certificates or any Transfer of this Certificate
by the Depositor, the Initial Purchaser or any of their respective Affiliates,
the Certificate Registrar shall refuse to register the Transfer of this
Certificate unless it has received from the prospective Transferee, either: (i)
a certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) alternatively, a
certification of facts and an Opinion of Counsel which otherwise establish to
the
A-7-4
reasonable satisfaction of the Trustee that such Transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. The form of
certification attached to the Agreement as Exhibit H-1 is acceptable for
purposes of the preceding sentence. If any Transferee of this Certificate or any
interest herein does not, in connection with the subject Transfer, deliver to
the Certificate Registrar a certification and/or Opinion of Counsel as required
by the second preceding sentence, then such Transferee shall be deemed to have
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing this Certificate or any interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and holding of this Certificate or such interest herein by
such Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents 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 or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the respective obligations and responsibilities under the
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than certain obligations of the Trustee set forth in the
Agreement) shall terminate upon payment (or provision for payment) (i) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required under the Agreement to be so paid on the Distribution Date following
the earliest to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder of all Mortgage
Loans and each REO Property remaining in the Trust Fund at a price determined as
provided in the Agreement, (B) following the date on which the aggregate
Certificate Principal Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates has been reduced to zero, the exchange by the remaining
Certificateholders (exclusive of the
A-7-5
Class R Certificateholders) of their Certificates for all Mortgage Loans and
each REO Property remaining in the Trust Fund, and (C) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) to the Trustee, the
Master Servicer, the Special Servicer and the officers, directors, employees and
agents of each of them of all amounts which may have become due and owing to any
of them under the Agreement. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than approximately 1.0% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of any REMIC Pool as a REMIC, without the consent of the Holders of
any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such State
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-7-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:-------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class Y Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-7-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:_______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
______________________________________________________________for the account of
______________________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
A-7-8
EXHIBIT B
RELEVANT SERVICING CRITERIA
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance Trustee
or other triggers and events of default in accordance with the Master Servicer
transaction agreements. Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third Trustee
parties, policies and procedures are instituted to monitor the Master Servicer
third party's performance and compliance with such servicing Special Servicer
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a N/A
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on Trustee
the party participating in the servicing function throughout the Master Servicer
reporting period in the amount of coverage required by and Special Servicer
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 Trustee
custodial bank accounts and related bank clearing accounts no more Master Servicer
than two business days following receipt, or such other number of Special Servicer
days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to Trustee
an investor are made only by authorized personnel. Master Servicer
Special Servicer
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows Master Servicer
or distributions, and any interest or other fees charged for such Special Servicer
advances, are made, reviewed and approved as specified in the Trustee
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Trustee
accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained (e.g., with Special Servicer
respect to commingling of cash) as set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Trustee
depository institution as set forth in the transaction agreements. Master Servicer
For purposes of this criterion, "federally insured depository Special Servicer
institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of
Rule 13k-1(b)(1) under the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Trustee
access. Master Servicer
Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Trustee
asset-backed securities related bank accounts, including custodial Master Servicer
accounts and related bank clearing accounts. These reconciliations Special Servicer
are (A) mathematically 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.
B-1
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports:
1122(d)(3)(i)(A) (A) Are prepared in accordance with timeframes and other terms Trustee
set forth in the transaction agreements;
1122(d)(3)(i)(B) (B) Provide information calculated in accordance with the terms Trustee
specified in the transaction agreements;
1122(d)(3)(i)(C) (C) Are filed with the Commission as required by its rules and Party who files
regulations; and report
1122(d)(3)(i)(D) (D) Agree with investors' or the Trustee's records as to the total Trustee
unpaid principal balance and number of pool assets serviced by the
servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance Trustee
with 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 Trustee
days to the 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 Trustee
cancelled 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 Trustee
by the transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
1122(d)(4)(ii) Mortgage loans and related documents are safeguarded as required Trustee
by the transaction agreements Master Servicer
Special Servicer
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Trustee
made, reviewed and approved in accordance with any conditions or Master Servicer
requirements in the transaction agreements. Special Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in Master Servicer
accordance with the related mortgage loan documents are posted to Special Servicer
the 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 reporting servicer's records regarding the mortgage loans Master Servicer
agree with the reporting 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 Master Servicer
mortgage loans (e.g., loan modifications or re-agings) are made, Special Servicer
reviewed and approved by 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, Special Servicer
modifications 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 Master Servicer
period a mortgage loan is delinquent in accordance with the Special Servicer
transaction agreements. 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 Master Servicer
loans with variable rates
B-2
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------------------------------
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 Master Servicer
accounts): (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 Master Servicer
payments) are 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 Master Servicer
made on 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 Master Servicer
business 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 Master Servicer
recognized and recorded in accordance with the transaction Special Servicer
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item N/A
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
[NAME OF REPORTING SERVICER]
Date: __________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-3
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: Citigroup Commercial Mortgage Trust 2006-C4
Commercial Mortgage Pass Through Certificates, Series 2006-C4
(the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(a) of the Pooling and Servicing Agreement
dated as of June 1, 2006, relating to the above-referenced Certificates (the
"Agreement"), LaSalle Bank National Association, in its capacity as trustee (the
"Trustee"), hereby certifies as to each Mortgage Loan subject as of the date
hereof to the Agreement (except as identified in the exception report attached
hereto) that: (i) without regard to the proviso in the definition of "Mortgage
File," all documents specified in clauses (i), (ii), (iv)(A), (v) and (vii), and
to the extent provided in the related Mortgage File and actually known by a
Responsible Officer of the Trustee to be required, clauses (iii), (iv)(B),
(iv)(C), (vi), (viii) and (ix)(A) of the definition of "Mortgage File" are in
its possession, (ii) all documents delivered or caused to be delivered by the
applicable Mortgage Loan Seller constituting the related Mortgage File have been
reviewed by it and appear regular on their face and appear to relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule for such
Mortgage Loan with respect to the items specified in clauses (v) and (vi)(C) of
the definition of "Mortgage Loan Schedule" is correct.
Neither the Trustee nor any Custodian is under any duty or obligation
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, enforceable, in recordable form,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
C-1
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
C-2
SCHEDULE A
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: Citigroup Commercial Mortgage Trust 2006-C4
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: Citigroup Commercial Mortgage Trust 2006-C4
Citigroup Commercial Mortgage Securities Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
PNC Bank, National Association
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: Xxxxx Xxxx
with a copy to:
PNC Bank, National Association
One PNC Plaza
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxx Xxxxx
Barclays Capital Real Estate Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: CMBS Group
with a copy to: Office of the General Counsel
C-3
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - Citigroup Commercial Mortgage
Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
In connection with the administration of the Mortgage Files held by
you as Trustee (or by a Custodian on your behalf), under that certain Pooling
and Servicing Agreement dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), by and between Citigroup Commercial Mortgage Securities Inc., as
depositor, Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), X.X. Xxxxxx Company, Inc., as special servicer (the "Special
Servicer"), and LaSalle Bank National Association, as trustee (the "Trustee),
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by you as Trustee or by a Custodian on your
behalf, with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control 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. The undersigned hereby certifies
that all amounts received in connection with the Mortgage
Loan that are required to be credited to the Collection
Account or the applicable Loan Combination Custodial Account
pursuant to the Pooling and Servicing Agreement, have been
or will be so credited.
______ 2. 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,
D-1-1
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.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - Citigroup Commercial Mortgage
Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
In connection with the administration of the Mortgage Files held by
you as Trustee (or by a Custodian on your behalf), under that certain Pooling
and Servicing Agreement dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), by and between Citigroup Commercial Mortgage Securities Inc., as
depositor, Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), X.X. Xxxxxx Company, Inc., as special servicer (the "Special
Servicer"), and LaSalle Bank National Association, as trustee (the "Trustee),
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by you as Trustee or by a Custodian on your
behalf, with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control 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. The undersigned hereby certifies
that all amounts received in connection with the Mortgage
Loan that are required to be credited to the Collection
Account or the applicable Loan Combination Custodial Account
pursuant to the Pooling and Servicing Agreement, have been
or will be so credited.
______ 2. 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
D-2-1
Agreement and will be returned to you or your designee within ten (10) days of
our receipt thereof (or within such longer period as we have indicated as part
of our reason for the request), unless the Mortgage Loan has been paid in full
or otherwise liquidated, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
X.X. XXXXXX COMPANY, INC.
By:
------------------------------------
Name:
Title:
D-2-2
EXHIBIT E
CALCULATION OF NET CASH FLOW
"Net Cash Flow" shall mean the revenue derived from the use and
operation of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
replacement reserves and an allowance for vacancies and credit losses. Net Cash
Flow does not reflect interest expenses and non-cash items such as depreciation
and amortization, and generally does not reflect capital expenditures, but does
reflect reserves for replacements and an allowance for vacancies and credit
losses.
In determining vacancy for the "revenue" component of Net Cash Flow
for each rental property, the Special Servicer shall rely on the most recent
rent roll supplied by the related borrower and where the actual vacancy shown
thereon and the market vacancy is less than 1%, the Special Servicer shall
assume a 1% vacancy in determining revenue from rents, except that in the case
of certain anchored shopping centers, space occupied by anchor or single tenants
or other large tenants shall be disregarded in performing the vacancy adjustment
due to the length of the related leases or creditworthiness of such tenants, in
accordance with the respective Mortgage Loan Seller's underwriting standards.
Where the actual or market vacancy was not less than 5.0%, the Special Servicer
shall determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, and (b) historical vacancy at comparable properties in the
same market as the related Mortgaged Property. In determining rental revenue for
multifamily, self-storage and mobile home park properties, the Special Servicer
shall either review rental revenue shown on the certified rolling 12-month
operating statements or annualized the rental revenue and reimbursement of
expenses shown on rent rolls or operating statements with respect to the prior
one to twelve month periods. For the other rental properties, the Special
Servicer shall annualize rental revenue shown on the most recent certified rent
roll, after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average occupancy not to exceed 75.0% and daily rates achieved during
the prior two to three year annual reporting period. In the case of residential
health care facilities, receipts shall be based on historical occupancy levels,
historical operating revenues and the then current occupancy rates. Occupancy
rates for private health care facilities shall be within current market ranges
and vacancy levels shall be at a minimum of 1%. In general, any non-recurring
items and non-property related revenue shall be eliminated from the calculation
except in the case of residential health care facilities.
In determining the "expense" component of Net Cash Flow for each
Mortgaged Property, the Special Servicer shall rely on the rolling 12-month
operating statements and/or full-year or year-to-date financial statements
supplied by the related borrower, except that (a) if tax or insurance expense
information more current than that reflected in the financial statements is
available, the newer information shall be used, (b) with respect to each
Mortgaged Property, property management fees shall be assumed to be 3% to 7% of
effective gross revenue (except with respect to hospitality properties, where a
minimum of 3.0% of gross receipts shall be assumed, and with respect to limited
service hospitality properties, where a minimum of 4.0% of gross receipts shall
be assumed and, with respect to
E-1
single tenant properties, where fees as low as 3% of effective gross receipts
shall be assumed), (c) assumptions shall be made with respect to reserves for
leasing commission, tenant improvement expenses and capital expenditures, and
(d) expenses shall be assumed to include annual replacement reserves. In
addition, in some instances, the Special Servicer may recharacterize as capital
expenditures those items reported by borrowers as operating expenses (thus
increasing "net cash flow") where determined appropriate.
E-2
EXHIBIT F
FORM OF DISTRIBUTION DATE STATEMENT
F-1
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
XXX
Administrator: ABN AMRO ACCT: Analyst:
Xxxxx Xxxxx-Xxxxxxx 312.904.0648 REPORTING PACKAGE TABLE OF CONTENTS Xxxxxxx Xxxx 714.259.6253
xxxxx.xxxxx.xxxxxxx@xxxxxxx.xxx xxxxxxx.xxxx@xxxxxxx.xxx
-----------------------------------------------------------------------------------------------------------------------------------
Page(s)
-------
Issue Id: CCMT06C4 Statements to Certificateholders Page 2 Closing Date:
Cash Reconciliation Summary Page 3
Monthly Data File Bond Interest Reconciliation Page 4 First Payment Date:
Name: CCMT06C4_200607_3.ZIP Bond Interest Reconciliation Page 5
Shortfall Summary Report Page 6 Rated Final Payment Date:
Rating Information Page 7
Asset-Backed Facts ~ 15 Month Loan Status Summary Page 8 Determination Date: 11-Jul-2006
Delinquent Loan Detail Page 9
Asset-Backed Facts ~ 15 Month Loan Payoff/Loss
Summary Page 10 Trust Collection Period
Historical Collateral Prepayment Page 11 -----------------------
Mortgage Loan Characteristics Page 12-14 6/13/2006 - 7/11/2006
Loan Level Detail Page 15
Appraisal Reduction Detail Page 16
Specially Serviced (Part I) - Loan Detail Page 17
Specially Serviced (Part II) - Servicer Comments Page 18
Modified Loan Detail Page 19
Realized Loss Detail Page 20
Historical REO Report Page 21
Material Breaches Detail Page 22
--------------------------------------------------------------------------------
PARTIES TO THE TRANSACTION
--------------------------------------------------------------------------------
Depositor: Citigroup Commercial Mortgage Securities Inc.
Underwriter: Citigroup Global Markets Inc/Barclays Capital Inc./PNC Capital
Markets, Inc./Deutsche Bank Securities Inc./Banc of America Securities
Master Servicer: Midland Loan Services, Inc.
Special Servicer: X.X. Xxxxxx Companies, Inc.
Rating Agency: Xxxxx'x Investors Service, Inc./Fitch
--------------------------------------------------------------------------------
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
--------------------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
Servicer Web Site xxx.xxxxxxxxx.xxx
LaSalle Factor Line 800.246.5761
Page 1 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
ORIGINAL PRINCIPAL
FACE OPENING PRINCIPAL ADJ. OR NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS VALUE (1) BALANCE PAYMENT LOSS AMORTIZATION BALANCE PAYMENT (2) ADJUSTMENT RATE
-------------------------------------------------------------------------------------------------------------
CUSIP Next Rate(3)
-------------------------------------------------------------------------------------------------------------
Total
Total P&I Payment
Notes:
(1) N denotes notional balance not included in total
(2) Accrued Interest Plus/Minus Interest Adjustment Minus Deferred Interest
equals Interest Payment
(3) Estimated. * Denotes Controlling Class
Page 2 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
CASH RECONCILIATION SUMMARY
--------------------------------------------------------------------------------
INTEREST SUMMARY
--------------------------------------------------------------------------------
Current Scheduled Interest 0.00
Less Deferred Interest 0.00
Less PPIS Reducing Scheduled Int 0.00
Plus Gross Advance Interest 0.00
Less ASER Interest Adv Reduction 0.00
Less Other Interest Not Advanced 0.00
Less Other Adjustment 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
UNSCHEDULED INTEREST:
--------------------------------------------------------------------------------
Prepayment Penalties 0.00
Yield Maintenance Penalties 0.00
Other Interest Proceeds 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
Less Fee Paid To Servicer 0.00
Less Fee Strips Paid by Servicer 0.00
--------------------------------------------------------------------------------
LESS FEES & EXPENSES PAID BY/TO SERVICER
--------------------------------------------------------------------------------
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Interest Due Serv on Advances 0.00
Non Recoverable Advances 0.00
Misc. Fees & Expenses 0.00
--------------------------------------------------------------------------------
Total Unscheduled Fees & Expenses 0.00
--------------------------------------------------------------------------------
Total Interest Due Trust 0.00
--------------------------------------------------------------------------------
LESS FEES & EXPENSES PAID BY/TO TRUST
--------------------------------------------------------------------------------
Trustee Fee 0.00
Fee Strips 0.00
Misc. Fees 0.00
Interest Reserve Withholding 0.00
Plus Interest Reserve Deposit 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
Total Interest Due Certs 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PRINCIPAL SUMMARY
--------------------------------------------------------------------------------
SCHEDULED PRINCIPAL:
Current Scheduled Principal 0.00
Advanced Scheduled Principal 0.00
--------------------------------------------------------------------------------
Scheduled Principal 0.00
--------------------------------------------------------------------------------
UNSCHEDULED PRINCIPAL:
Curtailments 0.00
Prepayments in Full 0.00
Liquidation Proceeds 0.00
Repurchase Proceeds 0.00
Other Principal Proceeds 0.00
--------------------------------------------------------------------------------
Total Unscheduled Principal 0.00
--------------------------------------------------------------------------------
Remittance Principal 0.00
--------------------------------------------------------------------------------
Remittance P&I Due Trust 0.00
--------------------------------------------------------------------------------
Remittance P&I Due Certs 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
POOL BALANCE SUMMARY
--------------------------------------------------------------------------------
Balance Count
--------------------------------------------------------------------------------
Beginning Pool 0.00 0
Scheduled Principal 0.00 0
Unscheduled Principal 0.00 0
Deferred Interest 0.00
Liquidations 0.00 0
Repurchases 0.00 0
--------------------------------------------------------------------------------
Ending Pool 0.00 0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NON-P&I SERVICING ADVANCE SUMMARY
--------------------------------------------------------------------------------
Amount
--------------------------------------------------------------------------------
Prior Outstanding 0.00
Plus Current Period 0.00
Less Recovered 0.00
Less Non Recovered 0.00
Ending Outstanding 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SERVICING FEE SUMMARY
--------------------------------------------------------------------------------
Current Servicing Fees 0.00
Plus Fees Advanced for PPIS 0.00
Less Reduction for PPIS 0.00
Plus Delinquent Servicing Fees 0.00
--------------------------------------------------------------------------------
Total Servicing Fees 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CUMULATIVE PREPAYMENT CONSIDERATION RECEIVED
--------------------------------------------------------------------------------
Prepayment Premiums 0.00
Yield Maintenance 0.00
Other Interest 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PPIS SUMMARY
--------------------------------------------------------------------------------
Gross PPIS 0.00
Reduced by PPIE 0.00
Reduced by Shortfalls in Fees 0.00
Reduced by Other Amounts 0.00
--------------------------------------------------------------------------------
PPIS Reducing Scheduled Interest 0.00
--------------------------------------------------------------------------------
PPIS Reducing Servicing Fee 0.00
--------------------------------------------------------------------------------
PPIS Due Certificate 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ADVANCE SUMMARY (ADVANCE MADE BY SERVICER)
--------------------------------------------------------------------------------
Principal Interest
--------------------------------------------------------------------------------
Prior Outstanding 0.00 0.00
Plus Current Period 0.00 0.00
Less Recovered 0.00 0.00
Less Non Recovered 0.00 0.00
Ending Outstanding 0.00 0.00
--------------------------------------------------------------------------------
Page 3 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
BOND INTEREST RECONCILIATION DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Current Remaining Credit
Accrual Pass- Accrued Total Total Distributable Interest Period Outstanding Support
----------- Opening Through Certificate Interest Interest Certificate Payment Shortfall Interest --------------------
Class Method Days Balance Rate Interest Additions Deductions Interest Amount Recovery Shorfalls Original Current (1)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance
of all classes which are not subordinate to the class divided by (A).
Page 4 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
BOND INTEREST RECONCILIATION DETAIL
--------------------------------------------------------------------------------------------------------------------------------
Additions Deductions
--------------------------------------------------- -----------------------------
Prior Interest Other
Prior Current Interest Accrual Interest Deferred & Interest Distributable Interest
Interest Interest Shortfall on Prior Prepayment Yield Proceeds Allocable Accretion Loss Certificate Payment
Class Due Date Due Date Due Shortfall Premiums Maintenance (1) PPIS Interest Expense Interest Amount
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
(1) Other Interest Proceeds are additional interest amounts specifically
allocated to the bond(s) and used in determining the Bondholder's
Distributable Interest.
Page 5 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
INTEREST ADJUSTMENTS SUMMARY
SHORTFALL ALLOCATED TO THE BONDS:
-----------------------------------------------------
Net Prepayment Int. Shortfalls Allocated to the Bonds 0.00
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Legal Fees 0.00
Misc. Fees & Expenses Paid by/to Servicer 0.00
Interest Paid to Servicer on Outstanding Advances 0.00
ASER Interest Advance Reduction 0.00
Interest Not Advanced (Current Period) 0.00
Recoup of Prior Advances by Servicer 0.00
Servicing Fees Paid Servicer on Loans Not Advanced 0.00
Misc. Fees & Expenses Paid by Trust 0.00
Shortfall Due to Rate Modification 0.00
Other Interest Loss 0.00
----
Total Shortfall Allocated to the Bonds 0.00
====
EXCESS ALLOCATED TO THE BONDS:
-----------------------------------------------------
Other Interest Proceeds Due the Bonds 0.00
Prepayment Interest Excess Due the Bonds 0.00
Interest Income 0.00
Yield Maintenance Penalties Due the Bonds 0.00
Prepayment Penalties Due the Bonds 0.00
Recovered ASER Interest Due the Bonds 0.00
Recovered Interest Due the Bonds 0.00
ARD Excess Interest 0.00
----
Total Excess Allocated to the Bonds 0.00
====
AGGREGATE INTEREST ADJUSTMENT ALLOCATED TO THE BONDS
--------------------------------------------------------------------------------
Total Excess Allocated to the Bonds 0.00
Less Total Shortfall Allocated to the Bonds 0.00
----
Total Interest Adjustment to the Bonds 0.00
====
Page 6 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
RATING INFORMATION
-------------------------------------------------------------------
ORIGINAL RATINGS RATING CHANGE/CHANGE DATE(1)
--------------------- ----------------------------
CLASS CUSIP FITCH XXXXX'X S&P Fitch Xxxxx'x S&P
----- ----- ----- ------- --- ----- ------- ---
-------------------------------------------------------------------
NR - Designates that the class was not rated by the rating agency.
(1) Changed ratings provided on this report are based on information provided by
the applicable rating agency via electronic transmission. It shall be understood
that this transmission will generally have been provided to LaSalle within 30
days of the payment date listed on this statement. Because ratings may have
changed during the 30 day window, or may not be being provided by the rating
agency in an electronic format and therefore not being updated on this report,
LaSalle recommends that investors obtain current rating information directly
from the rating agency.
Page 7 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL LOAN STATUS SUMMARY
------------------------------------------------------------------------------------------------------------------------------
Delinquency Aging Categories Special Event Categories (1)
----------------------------------------------------------------------------------------------------------------
Delinq 1 Delinq 2 Delinq 3+
Month Months Months Foreclosure REO Modifications Specially Serviced Bankruptcy
Distribution ----------------------------------------------------------------------------------------------------------------
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance # Balance
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
Page 8 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
DELINQUENT LOAN DETAIL
-----------------------------------------------------------------------------------------------------------------------------
Paid Outstanding Out. Property Special
Disclosure Thru Current P&I P&I Protection Loan Status Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Code (1) Transfer Date Date Date Date
-----------------------------------------------------------------------------------------------------------------------------
TOTAL
-----------------------------------------------------------------------------------------------------------------------------
A. IN GRACE PERIOD 1. DELINQ. 1 MONTH 3. DELINQUENT 3 + MONTHS 5. NON PERFORMING MATURED BALLOON 9. REO
B. LATE PAYMENT BUT < 1 MONTH DELINQ. 2. DELINQ. 2 MONTHS 4. PERFORMING MATURED BALLOON 7. FORECLOSURE
** Outstanding P&I Advances include the current period P&I Advances and may
include Servicer and Trust Advances.
Page 9 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Realized Remaining
Ending Pool (1) Payoffs (2) Penalties Reduct. (2) Liquidations (2) Losses (2) Term Curr Weighted Avg.
Distribution --------------- ------------ ----------- ------------ ---------------- ----------- --------- ------------------
Date # Balance # Balance # Amount # Balance # Balance # Amount Life Coupon Remit
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 10 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
------------------------------------------------------------------------------------------------
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property Geographic
Control # Period Balance Type Amount Amount Date Date Type Location
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
CURRENT
CUMULATIVE
Page 11 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PRINCIPAL BALANCES
--------------------------------------------------------------------------
Weighted Average
Current Scheduled # of Scheduled % of ------------------------
Balance Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------
Average Schedule Balance 0
Maximum Schedule Balance (9,999,999,999)
Minimum Schedule Balance 9,999,999,999
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING)
--------------------------------------------------------------------------
Weighted Average
Fully Amortizing # of Scheduled % of ------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------
DISTRIBUTION OF MORTGAGE INTEREST RATES
--------------------------------------------------------------------------
Weighted Average
Current Mortgage # of Scheduled % of ------------------------
Interest Rate Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------
Minimum Mortgage Interest Rate ,900.000%
Maximum Mortgage Interest Rate ,900.000%
DISTRIBUTION OF REMAINING TERM (BALLOON)
--------------------------------------------------------------------------
Weighted Average
Balloon # of Scheduled % of ------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------
Page 12 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF DSCR (PFY)
--------------------------------------------------------------------
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
--------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
DISTRIBUTION OF DSCR (CUTOFF)
--------------------------------------------------------------------
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
--------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
GEOGRAPHIC DISTRIBUTION
----------------------------------------------------------------
Geographic # of Scheduled % of
Location Loans Balance Balance WAMM WAC PFY DSCR
----------------------------------------------------------------
0 0 0.00%
----------------------------------------------------------------
Page 13 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PROPERTY TYPES
-------------------------------------------------------------------
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC PFY DSCR
-------------------------------------------------------------------
0 0 0.00%
-------------------------------------------------------------------
DISTRIBUTION OF AMORTIZATION TYPE
-----------------------------------------------------------------------
# of Scheduled % of
Amortization Type Loans Balance Balance WAMM WAC PFY DSCR
-----------------------------------------------------------------------
0 0 0.00%
-----------------------------------------------------------------------
DISTRIBUTION OF LOAN SEASONING
----------------------------------------------------------------------
# of Scheduled % of
Number of Months Loans Balance Balance WAMM WAC PFY DSCR
----------------------------------------------------------------------
0 0 0.00%
----------------------------------------------------------------------
DISTRIBUTION OF YEAR LOANS MATURING
---------------------------------------------------------------------
# of Scheduled % of
Year Loans Balance Balance WAMM WAC PFY DSCR
---------------------------------------------------------------------
2006 0 0 0.00% 0 0.00% 0.00
2007 0 0 0.00% 0 0.00% 0.00
2008 0 0 0.00% 0 0.00% 0.00
2009 0 0 0.00% 0 0.00% 0.00
2010 0 0 0.00% 0 0.00% 0.00
2011 0 0 0.00% 0 0.00% 0.00
2012 0 0 0.00% 0 0.00% 0.00
2013 0 0 0.00% 0 0.00% 0.00
2014 0 0 0.00% 0 0.00% 0.00
2015 0 0 0.00% 0 0.00% 0.00
2016 0 0 0.00% 0 0.00% 0.00
2017 & Greater 0 0 0.00% 0 0.00% 0.00
---------------------------------------------------------------------
0 0 0.00%
---------------------------------------------------------------------
Page 14 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
LOAN LEVEL DETAIL
-----------------------------------------------------------------------------------------------------------------------------
Operating Ending Loan
Disclosure Property Maturity PFY Statement Geo. Principal Note Scheduled Prepayment Prepayment Status
Control # Group Type Date DSCR Date Location Balance Rate P&I Amount Date Code (1)
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
* NOI and DSCR, if available and reportable under the terms of the trust agreement, are based on information obtained from
the related borrower, and no other party to the agreement shall be held liable for the accuracy or methodology used to
determine such figures.
(1) Legend: A. In Grace Period 1. Delinquent 1 month 3. Delinquent 3+ months 5. Non Performing Matured Ballon 9. REO
B. Late Payment but 2. Delinquent 2 months 4. Performing Matured 7. Foreclosure
< 1 month delinq Balloon
--------------------------------------------------------------------------------------------------------------------------------
Page 15 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
APPRAISAL REDUCTION DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Current Remaining Term Appraisal
Disclosure Appraisal Scheduled AR P&I Note Maturity -------------- Property Geographic -----------
Control# Red. Date Balance Amount Advance ASER Rate Date Life Type Location DSCR Value Date
---------- --------- --------- ------ ------- -------- ---- -------- ------ ------ -------- ---------- ---- ----- ----
------------------------------------------------------------------------------------------------------------------------------------
Page 16 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL (END OF PERIOD)
--------------------------------------------------------------------------------------------------------------------------------
Loan Balance Remaining
Disclosure Servicing Status ---------------- Note Maturity --------- Property Geo. NOI
Control # Xfer Date Code(1) Schedule Actual Rate Date Life Type Location NOI DSCR Date
---------- --------- ------- -------- ------ ---- -------- ---- --- -------- -------- --------- --------- ---------
Not Avail Not Avail Not Avail
--------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. P&I Adv - in 1. P&I Adv - delinquent 3. P&I Adv - delinquent 5. Non Performing Mat. 9. REO
Grace Period 1 month 3+ months Balloon
B. P&I Adv - < 2. P&I Adv - delinquent 4. Mat. Balloon/Assumed 7. Foreclosure
one month delinq 2 months P&I
Page 17 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS (END OF PERIOD)
Disclosure Resolution
Control # Strategy Comments
----------------------------------
----------------------------------
Page 18 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MODIFIED LOAN DETAIL
Ending Cutoff Modified
Disclosure Principal Modification Maturity Maturity Modification
Control # Balance Date Date Date Description
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Modified Loan Detail includes loans whose terms, fees, penalties or payments
have been waived or extended.
Page 19 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
REALIZED LOSS DETAIL
----------------------------------------------------------------------------------------------------------------------------------
Beginning Gross Proceeds Aggregate Net Net Proceeds
Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Period Control # Date Value Balance Proceeds Sched. Balance Expenses * Proceeds Sched. Balance Loss
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
CURRENT TOTAL
CUMULATIVE
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
Page 20 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
HISTORICAL COLLATERAL LEVEL REO REPORT
---------------------------------------------------------------------------------------------
Recent Appraisal
Disclosure REO Property Actual Scheduled Appraisal Appraisal Reduction
Control # Date City State Type Balance Balance Value Date Amount
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
-------------------------------------------------------------
Other
Date Liquidation Liquidation Revenue Realized Type
Liquidated Proceeds Expenses Recovered Loss (*)
--------------------------------------------------------------
--------------------------------------------------------------
(*) Legend: (1) Paid in Full, (2) Final Recovery Made, (3) Permitted Purchase
(4) Final Recovery of REO, (5) Permitted purchase of REO
Page 21 of 22
[LaSalle Bank ABN AMRO LOGO] CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. Statement Date: 17-Jul-06
COMMERICAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-C4 Prior Payment: N/A
Next Payment: 16-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MATERIAL BREACHES AND MATERIAL DOCUMENT DEFECT DETAIL
Ending Material
Disclosure Principal Breach Material Breach and Material Document Defect
Control # Balance Date Description
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Material breaches of pool asset representation or warranties or transaction
covenants.
Page 22 of 22
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, Citigroup Commercial Mortgage
Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4, Class _____, [having
an initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of June 29, 2006 (the "Closing Date") of
$___________] [representing a ____% Percentage Interest in the
applicable Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 2006, between Citigroup
Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, Inc.,
as master servicer, X.X. Xxxxxx Company, Inc., as special servicer, and LaSalle
Bank National Association, as trustee. All capitalized terms used herein and not
otherwise herein defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "Securities
Act"), would render the disposition of the Transferred Certificates a
violation of Section 5 of the Securities Act or any state securities laws,
or would
G-1-1
require registration or qualification of the Transferred Certificates
pursuant to the Securities Act or any state securities laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, Citigroup Commercial Mortgage
Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4, Class _____, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of June 29, 2006 (the "Closing Date") of $
__________] [representing a
____% Percentage Interest in the applicable Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________________ (the "Transferor") to
________________________________ (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of June 1, 2006, between Citigroup Commercial Mortgage Securities Inc., as
depositor, Midland Loan Services, Inc., as master servicer, X.X. Xxxxxx Company,
Inc., as special servicer, and LaSalle Bank National Association, as trustee.
All capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and payments thereon,
(c) the nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust created pursuant thereto, and
(e) all related matters, that it has requested.
G-2-1
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
Title:
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
----------------------------------------
(Nominee)
By:
------------------------------------
Name:
Title:
G-2-2
ANNEX 1 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded
securities referred to below) as of the end of such entity's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or any organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
_____ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the
case of a U.S. bank, and not more than 18 months preceding such date
of sale in the case of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a state or federal authority having supervision over any
such institutions, or is a foreign savings and loan association
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
G-2-3
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more
than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a state, U.S. territory or the District
of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1) _______________________________________________________
_____________________________________________________________________
____________________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining
G-2-4
such aggregate amount, the Transferee may have included securities owned by
subsidiaries of such Person, but only if such subsidiaries are consolidated
with such Person in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned,
consolidated subsidiary of another enterprise and such Person is not itself
a reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
Date:
G-2-5
ANNEX 2 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee") or,
if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because the Transferee is part of a Family of Investment Companies
(as defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings
in its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
_____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
_____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies,
G-2-6
(ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies,
the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee will be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
G-2-7
EXHIBIT G-3
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, Citigroup Commercial Mortgage
Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4, Class _____, [having
an initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of June 29, 2006 (the "Closing Date") of
$_______][representing a ____% Percentage Interest in the
applicable Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 2006, between Citigroup
Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, Inc.,
as master servicer, X.X. Xxxxxx Company, Inc., as special servicer, and LaSalle
Bank National Association, as trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither the Transferred
Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant
to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and
the Certificate Registrar has received: (A) a certificate from the
prospective transferor substantially in the form attached as Exhibit G-1 to
the Pooling and Servicing Agreement and a certificate
G-3-1
from such Certificateholder's prospective transferee substantially in the
form attached either as Exhibit G-2 to the Pooling and Servicing Agreement
or as Exhibit G-3 to the Pooling and Servicing Agreement; or (B) an Opinion
of Counsel satisfactory to the Certificate Registrar to the effect that,
among other things, the transfer may be made without registration under the
Securities Act, together with written certification(s) as to the facts
surrounding the transfer from the prospective transferor and/or prospective
transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each
Transferred Certificate will bear legends substantially to the following
effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT 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 (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a pledge, disposition or other transfer of any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any
G-3-2
interest in any Transferred Certificate or any other similar security by
means of general advertising or in any other manner, or (e) taken any other
action with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) above) would
constitute a distribution of the Transferred Certificates under the
Securities Act, would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of the
Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized or will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and payments thereon,
(c) nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraphs (1), (2), (3) and/or (7) of Rule 501(a) under the Securities Act
or an entity in which all of its equity owners come within such paragraphs.
The Transferee has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Transferred Certificates; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the
economic risks of such an investment and can afford a complete loss of such
investment.
G-3-3
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
-------------------------------------
(Transferee)
By:
---------------------------------
Name:
Title:
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
-------------------------------------
(Nominee)
By:
---------------------------------
Name:
Title:
G-3-4
EXHIBIT G-4
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of June 29, 2006 (the "Closing Date") of
$__________ (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Transferred Certificates were issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of June 1, 2006, between Citigroup Commercial Mortgage Securities Inc.,
as depositor, Midland Loan Services, Inc., as master servicer, X.X. Xxxxxx
Company, Inc., as special servicer, and LaSalle Bank National Association, as
trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, the Trustee and the Certificate Registrar,
that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the Transfer to it of
the Transferor's interest in the Transferred Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring such interest in the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates, and (c)
neither any Transferred Certificate nor any interest therein may be resold
or transferred unless it is (i) registered pursuant to the Securities Act
and registered or qualified pursuant to any applicable state securities
laws or (ii) sold or transferred in a transaction which is exempt from such
registration and qualification.
G-4-1
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificates will bear legends substantially to the following
effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT 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 (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
G-4-2
4. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, and (e) all related matters, that it has requested.
Very truly yours,
-------------------------------------
(Transferee)
By:
---------------------------------
Name:
Title:
G-4-3
ANNEX 1 TO EXHIBIT G-4
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Citigroup Commercial Mortgage
Securities Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity acquiring interests in the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis $____________(1) in
securities (other than the excluded securities referred to below) as of the
end of such entity's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or any organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
_____ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the
case of a U.S. bank, and not more than 18 months preceding such date
of sale in the case of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
G-4-4
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of sale
in the case of a foreign savings and loan association or equivalent
institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
_____ Plan. The Transferee is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
_____ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining such aggregate amount, the
Transferee may have included securities owned by subsidiaries of such
Person, but only if such subsidiaries are consolidated with such Person in
its financial
G-4-5
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
such Person's direction. However, such securities were not included if such
Person is a majority-owned, consolidated subsidiary of another enterprise
and such Person is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee may
be in reliance on Rule 144A.
_____ _____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a reaffirmation
of this certification as of the date of such acquisition. In addition, if
the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
Title:
Date:
G-4-6
ANNEX 2 TO EXHIBIT G-4
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Citigroup Commercial Mortgage
Securities Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity acquiring interests in the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary basis,
or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee or
the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
_____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
G-4-7
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more Transfers to the Transferee will be in reliance on Rule 144A.
_____ _____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
G-4-8
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
----------------------------------------
(Transferee or Adviser)
By:
------------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
----------------------------------------
Date:
G-4-9
EXHIBIT G-5
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of June 29, 2006 (the "Closing Date") of
$__________ (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Transferred Certificates were issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of June 1, 2006, between Citigroup Commercial Mortgage Securities Inc.,
as depositor, Midland Loan Services, Inc., as master servicer, X.X. Xxxxxx
Company, Inc., as special servicer, and LaSalle Bank National Association, as
trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the
X-0-0
Xxxxxx Xxxxxx, other than one held for the benefit or account of a non-United
States Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
The Transferee understands that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated: __________, _____
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
Title:
G-5-2
EXHIBIT H-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
_____________, 20__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - Citigroup Commercial Mortgage
Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of June 29, 2006 (the "Closing Date")
of $__________] [evidencing a ____% Percentage Interest in the subject Class]
(the "Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of June 1, 2006, between Citigroup
Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, Inc.,
as master servicer, X.X. Xxxxxx Company, Inc., as special servicer, and LaSalle
Bank National Association, as trustee. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you as Certificate Registrar, as follows (check the applicable
paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement account or
annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including, without limitation, an insurance company general account,
that is subject to ERISA or the Code (each, a "Plan"), and (B) is not
directly or indirectly purchasing the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
_____ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is exempt
from the prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60.
H-1-1
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and are being
acquired by or on behalf of a Plan in reliance on Prohibited
Transaction Exemption 91-23 and such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer,
any Exemption-Favored Party or any Mortgagor with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized
principal balance of all the Mortgage Loans determined on the date of
the initial issuance of the Certificates, or by any Affiliate of such
Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans, a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (BOOK-ENTRY NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in Class
___ Certificates [having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 29, 2006 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006, between Citigroup Commercial Mortgage Securities Inc., as
depositor, Midland Loan Services, Inc., as master servicer, X.X. Xxxxxx Company,
Inc., as special servicer, and LaSalle Bank National Association, as trustee.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as follows (check
the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement account or
annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including, without limitation, an insurance company general account,
that is subject to ERISA or the Code (each, a "Plan"), and (B) is not
directly or indirectly purchasing an interest in the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan;
_____ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person is
exempt from the prohibited transaction provisions of Sections 406(a)
and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by
reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60.
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and an
interest in such Certificates is being acquired by or on behalf of a
Plan in reliance on Prohibited Transaction
H-2-1
Exemption 91-23 and such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y)
is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by
the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the
aggregate unamortized principal balance of all the Mortgage Loans
determined on the date of the initial issuance of the Certificates,
or by any Affiliate of such Person, and (Z) agrees that it will
obtain from each of its Transferees that are Plans, a written
representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING CLASS R CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO SECTIONS
860D(A)(6)(A) AND 860E(E)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND
TREASURY REGULATION SECTION 1.860E-1(C)(4)
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4 (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of June 1, 2006,
between Citigroup Commercial Mortgage Securities Inc., as
Depositor, Midland Loan Services, Inc., as Master Servicer, X.X.
Xxxxxx Company, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee
STATE OF __________________________ )
) ss.: ______________________________
COUNTY OF _________________________ )
The undersigned declares that, to the best knowledge and belief of the
undersigned, the following representations are true, correct and complete:
1. ______________________________ (the "Purchaser"), is acquiring
Class R Certificates representing ________________% of the residual interest in
each of the real estate mortgage investment conduits (each, a "REMIC")
designated as "REMIC I" and "REMIC II", respectively, relating to the
Certificates for which an election is to be made under Section 860D of the
Internal Revenue Code of 1986, as amended (the "Code").
2. The Purchaser is not a "Disqualified Organization" (as defined
below), and the Purchaser is not acquiring the Class R Certificates for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership thereof, to a Disqualified
Organization. For the purposes hereof, a Disqualified Organization is any of the
following: (i) the United States, (ii) any state or political subdivision
thereof, (iii) any foreign government, (iv) any international organization, (v)
any agency or instrumentality of any of the foregoing, (vi) any tax-exempt
organization (other than a cooperative described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code, (vii) any
organization described in Section 1381(a)(2)(C) of the Code, or (viii) any other
entity designated as a "disqualified organization" by relevant legislation
amending the REMIC Provisions and in effect at or proposed to be effective as of
the time of determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political
I-1-1
subdivision thereof if all of its activities are subject to tax (except for the
Federal Home Loan Mortgage Corporation) and a majority of its board of directors
is not selected by such governmental unit. The terms "United States" and
"international organization" shall have the meanings set forth in Section 7701
of the Code.
3. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Class R Certificates to a Disqualified Organization.
4. The Purchaser will not transfer the Class R Certificates to any
person or entity as to which the Purchaser has not received an affidavit
substantially in the form of this affidavit or to any person or entity as to
which the Purchaser has actual knowledge that the requirements set forth in
paragraphs 2 and 7 hereof are not satisfied, or to any person or entity with
respect to which the Purchaser has not (at the time of such transfer) satisfied
the requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial owners
if such person or entity is classified as a partnership under the Code).
5. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the Class R Certificates to a Disqualified Organization, an
agent thereof or a person that does not satisfy the requirements of paragraph 7.
6. The Purchaser consents to the designation of the Trustee as the
agent of the Tax Matters Person of REMIC I and REMIC II pursuant to Section
10.01 of the Pooling and Servicing Agreement.
7. No purpose of the acquisition of the Class R Certificates is to
impede the assessment or collection of tax.
[CHOOSE BETWEEN PARAGRAPHS 8 OR 9 BELOW]
[_] 8. If the Transferor requires the safe harbor under Treasury
regulations section 1.860E-1 to apply:
i. 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
Certificates as they become due.
ii. The Purchaser understands that it may incur tax liabilities with
respect to the Class R Certificates in excess of any cash flows
generated by such Certificates.
iii. The Purchaser is not a foreign permanent establishment or a fixed base
(within the meaning of any applicable income tax treaty between the
United States and any foreign jurisdiction) of a United States Tax
Person.
iv. The Purchaser will not cause the income from the Class R Certificates
to be attributable to a foreign permanent establishment or fixed base
(within the meaning of any applicable
I-1-2
income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
[CHECK THE STATEMENT THAT APPLIES]
[_] v) In accordance with Treasury Regulations Section 1.860E-1, the
Purchaser:
a) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury regulations (i.e., a domestic C
corporation other than a corporation which is exempt from, or is not
subject to, tax under Section 11 of the Code; a Regulated Investment
Company as defined in Section 851(a) of the Code; a Real Estate
Investment Trust as defined in Section 856(a) of the Code; a REMIC as
defined in Section 860D of the Code; or an organization to which part
I of subchapter T of chapter 1 of subtitle A of the Code applies, as
to which the income of Class R Certificates will only be subject to
taxation in the United States,
b) has, and has had in each of its two preceding fiscal years, gross
assets for financial reporting purposes (excluding any obligation of a
person related to the transferee within the meaning of Section
1.860E-1(c)(6)(ii) of the Treasury regulations or any other assets if
a principal purpose for holding or acquiring such asset is to satisfy
this condition) in excess of $100 million and net assets of $10
million, and
c) hereby agrees only to transfer the Certificate to another "eligible
corporation" meeting the criteria set forth in Treasury regulations
section 1.860E-1.
OR
[_] vi) The Purchaser is a United States Tax Person and the consideration paid
to the Purchaser for accepting the Class R Certificates is greater
than the present value of the anticipated net federal income taxes and
tax benefits ("Tax Liability Present Value") associated with owning
such Certificates, with such present value computed using a discount
rate equal to the "Federal short-term rate" prescribed by Section 1274
of the Code as of the date hereof or, to the extent it is not, if the
Transferee has asserted that it regularly borrows, in the ordinary
course of its trade or business, substantial funds from unrelated
third parties at a lower interest rate than such applicable federal
rate and the consideration paid to the Purchaser is greater than the
Tax Liability Present Value using such lower interest rate as the
discount rate, the transactions with the unrelated third party
lenders, the interest rate or rates, the date or dates of such
transactions, and the maturity dates or, in the case of adjustable
rate debt instruments, the relevant adjustment dates or periods, with
respect to such borrowings, are accurately stated in Exhibit A to this
letter
[_] 9. If the Transferor does not require the safe harbor under Treasury
regulations section 1.860E-1 to apply: [CHECK THE STATEMENT THAT APPLIES]
[_] i) The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is ______________).
The Purchaser is not classified as a partnership under the Code (or,
if so classified, all of its beneficial owners are United States
persons).
I-1-3
OR
[_] ii) The Purchaser is not a United States person. However, the Purchaser:
a) conducts a trade or business within the United States and, for
purposes of Treasury regulations section 1.860G-3(a)(3), is subject to
tax under Section 882 of the Code;
b) understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of a Class R Certificate for United
States federal income tax purposes, it may incur tax liabilities in
excess of any cash flows generated by such Class R Certificate;
c) intends to pay the taxes associated with holding a Class R
Certificate;
d) is not classified as a partnership under the Code (or, if so
classified, all of its beneficial owners either satisfy clauses (a),
(b) and (c) of this sentence or are United States persons); and
e) has furnished the Transferor and the Trustee with an effective IRS
Form W-8ECI or successor form and will update such form as may be
required under the applicable Treasury regulations
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
I-1-4
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this _______ day of
___________________________.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Personally appeared before me ___________________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be a _______________________ of the Purchaser, and acknowledged to me that
he/she executed the same at his/her free act and deed and at the free act and
deed of the Purchaser.
Subscribed and sworn before me this
_______ day of _______________, 20_____.
----------------------------------------
Notary Public
I-1-5
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING CLASS R CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - Citigroup Commercial Mortgage
Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class R Certificates evidencing a ____% Percentage Interest in such Class (the
"Residual Interest Certificates"). The Certificates, including the Residual
Interest Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
between Citigroup Commercial Mortgage Securities Inc., as depositor, Midland
Loan Services, Inc., as master servicer, X.X. Xxxxxx Company, Inc., as special
servicer, and LaSalle Bank National Association, as trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Interest Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit I-1. The Transferor does not
know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Internal Revenue Code of 1986, as amended) as
contemplated by Treasury regulations section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found
no significant evidence to indicate that the Transferee will not continue
to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not
be respected for United States
I-2-1
income tax purposes (and the Transferor may continue to be liable for
United States income taxes associated therewith) unless the Transferor has
conducted such an investigation.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[OTHER RATING AGENCIES FOR NON-TRUST LOAN SECURITIES]
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling
and Servicing Agreement, dated as of June 1, 2006 and relating to Citigroup
Commercial Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through
Certificates, Series 2006-C4 (the "Agreement"). Capitalized terms used but not
otherwise defined herein shall have respective meanings assigned to them in the
Agreement.
Notice is hereby given that [the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class] [the ShopKo
Portfolio Controlling Non-Trust Loan Noteholders] have designated
________________ to serve as the [Special Servicer [(other than with respect to
___________)]] [ShopKo Portfolio Special Servicer] under the Agreement.
The designation of __________________ as [Special Servicer [(other
than with respect to ___________)]] [ShopKo Portfolio Special Servicer] will
become final if certain conditions are met and you deliver to _________________,
the trustee under the Agreement (the "Trustee"), written confirmation that if
the person designated to become the [Special Servicer [(other than with respect
to ___________)]] [ShopKo Portfolio Special Servicer] were to serve as such,
such event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates [or
one or more classes of any Non-Trust Loan Securities backed by _____________].
Accordingly, such confirmation is hereby requested as soon as possible.
J-2-1
Please acknowledge receipt of this notice by signing the enclosed copy
of this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
Receipt acknowledged:
XXXXX'X INVESTORS SERVICE, INC.
By:
---------------------------------
Name:
Title:
Date:
FITCH, INC.
By:
---------------------------------
Name:
Title:
Date:
[OTHER APPLICABLE RATING AGENCIES]
By:
---------------------------------
Name:
Title:
Date:
X-0-0
XXXXXXX X-0
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
Re: Citigroup Commercial Mortgage Trust 2006-C4,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement, dated
as of June 1, 2006, relating to Citigroup Commercial Mortgage Trust 2006-C4,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4 (the "Agreement"),
the undersigned hereby agrees with all the other parties to the Agreement that
the undersigned shall serve as [Special Servicer [(other than with respect to
___________)]] [ShopKo Portfolio Special Servicer] under, and as defined in, the
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of [Special Servicer [(other than with respect
to ___________)]] [ShopKo Portfolio Special Servicer]. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 3.23(b) of the Agreement, with the following corrections with respect to
type of entity and jurisdiction of organization: ____________________.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Agreement.
[NAME OF PROPOSED SPECIAL SERVICER]
By:
------------------------------------
Name:
Title:
J-2-3
EXHIBIT K
LIST OF DESIGNATED SUB-SERVICERS
PRIMARY
CURRENT PRIMARY SERVICING
LOAN LOAN SERVICING RETAINED OR
NUMBER SELLER PROPERTY NAME BALANCE CURRENT PRIMARY SERVICER FEE % RELEASED?
------- ------- --------------------------- -------------- ------------------------- ------------- ---------------
LoanNum SubPool PropName AllocBal PrimaryServicer PrimarySvcFee SvcType
7017582 CGM ShopKo Portfolio 200,000,000.00 Midland 0.020% Retained
7015436 CGM Reckson II Office Portfolio 72,000,000.00 NorthMarq Capital, Inc. 0.020% Retained
7016319 CGM Great Wolf Resorts 63,000,000.00 NorthMarq Capital, Inc. 0.020% Retained
Portfolio
7014412 CGM 20 North Orange 42,695,000.00 GEMSA Loan Services, L.P. 0.030% Retained
7016966 CGM SpringHill Suites - North 19,762,500.00 Laureate Capital, LLC 0.060% Retained
Shore
7016964 CGM Holiday Inn Express - 9,487,500.00 Laureate Capital, LLC 0.060% Retained
South Side
7016956 CGM Holiday Inn Express - 4,670,000.00 Laureate Capital, LLC 0.060% Retained
Bridgeville
7016965 CGM Comfort Inn - Meadowlands 4,350,000.00 Laureate Capital, LLC 0.060% Retained
7016564 CGM Woodstream Apartments 33,000,000.00 NorthMarq Capital, Inc. 0.030% Retained
7015168 CGM Riverview Tower 30,250,000.00 NorthMarq Capital, Inc. 0.020% Retained
7015719 CGM Lakeland Town Center 26,700,000.00 GEMSA Loan Services, L.P. 0.020% Retained
7017195 CGM Plaza at the Pointe 21,900,000.00 Midland/HFF 0.050% Retained
(non-cashiering
by HFF)
7016226 CGM Treetops Apartments 20,000,000.00 NorthMarq Capital, Inc. 0.035% Retained
7016671 CGM Wolf Creek Apartments 17,500,000.00 Pacific Southwest Realty 0.030% Retained
Services
7016158 CGM Desert Inn Office Center 15,540,000.00 GEMSA Loan Services, L.P. 0.030% Retained
7016444 CGM Beau Rivage Apartments 192 8,879,000.00 Xxxxx Financial 0.060% Retained
7016445 CGM Beau Rivage Apartments 132 5,846,000.00 Xxxxx Financial 0.060% Retained
7012728 CGM Xxxxxxxxxxxx Parkway Office 11,717,659.97 GEMSA Loan Services, L.P. 0.060% Retained
7015754 CGM One Xxxxxx Road 11,400,000.00 GEMSA Loan Services, L.P. 0.060% Retained
7015677 CGM Hilltop Square Shopping 10,953,250.82 Laureate Capital, LLC 0.070% Retained
Center
7014413 CGM Sav-A-Center - Metairie, LA 10,069,086.88 GEMSA Loan Services, L.P. 0.050% Retained
7015658 CGM Natchez Mall 9,528,182.19 GEMSA Loan Services, L.P. 0.050% Retained
7015842 CGM Northwood Village 8,550,000.00 GEMSA Loan Services, L.P. 0.050% Retained
7016109 CGM Riverfront Business Park 8,400,000.00 GEMSA Loan Services, L.P. 0.030% Retained
7016310 CGM Oglethorpe Crossing 7,500,000.00 GEMSA Loan Services, L.P. 0.030% Retained
7016180 CGM Spring Meadow Apartments 7,500,000.00 GEMSA Loan Services, L.P. 0.080% Retained
7015309 CGM Regency at Xxxxxxxx Park 7,275,000.00 GEMSA Loan Services, L.P. 0.060% Retained
7015208 CGM Xxxxxx Marketplace 6,059,995.36 NorthMarq Capital, Inc. 0.040% Retained
7015116 CGM Office Depot Plaza 5,720,136.79 GMAC Commercial Mortgage 0.100% Retained
7016146 CGM Kipling Manor Apartments 5,500,000.00 GEMSA Loan Services, L.P. 0.080% Retained
7015485 CGM Cypress Grove Plaza 5,318,235.01 GEMSA Loan Services, L.P. 0.060% Retained
7015902 CGM Holiday Inn Express - 5,267,694.39 Laureate Capital, LLC 0.050% Retained
Mooresville
7016943 CGM Fairfield Inn - Myrtle 5,036,062.11 Laureate Capital, LLC 0.060% Retained
Xxxxx, XX
0000000 CGM Grace Street Apartments 4,750,000.00 GMAC Commercial Mortgage 0.100% Retained
7016941 CGM Holiday Inn Express - 4,686,916.00 Laureate Capital, LLC 0.060% Retained
Xxxxxx Xxxxx, XX
0000000 CGM Xxxxxx and Xxxxx 3,996,501.37 GEMSA Loan Services, L.P. 0.080% Retained
7015101 CGM Best Buy-Portage 3,996,410.95 GEMSA Loan Services, L.P. 0.080% Retained
7016372 CGM Pasco Rite Aid 3,838,865.54 GEMSA Loan Services, L.P. 0.050% Retained
7015818 CGM Mill & Main 3,689,078.23 GEMSA Loan Services, L.P. 0.050% Retained
7014671 CGM Shoppes at Cranberry 3,520,000.00 GEMSA Loan Services, L.P. 0.060% Retained
Commons
7014842 CGM Rite Aid - Louisville, KY 2,357,246.41 GEMSA Loan Services, L.P. 0.080% Retained
K-1
EXHIBIT L-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
FOR WEBSITE ACCESS FROM CERTIFICATE [HOLDER] [OWNER]
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - Citigroup Commercial Mortgage
Trust 2006-C4
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
Ladies and Gentlemen:
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
between Citigroup Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), X.X. Xxxxxx Company, Inc., as special servicer (the "Special
Servicer"), and LaSalle Bank National Association, as trustee (the "Trustee"),
with respect to Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a [beneficial owner] [registered holder] of the
Class _____ Certificates.
2. The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information") identified on the
schedule attached hereto pursuant to Section 3.15 of the Pooling and
Servicing Agreement; or
L-1-1
(ii) ____ a password [and username] pursuant to the Pooling and
Servicing Agreement for access to information (also, the
"Information") provided on the [Trustee's] [Master Servicer's]
[Special Servicer's] Internet Website.
3. In connection with accessing the website of the [Master Servicer]
[Trustee] [Special Servicer], the undersigned hereby agrees to register, execute
or accept an access agreement and accept a disclaimer, as and to the extent
required by the [Master Servicer] [Trustee] [Special Servicer] in accordance
with the Pooling and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer's] [Special
Servicer's] disclosure to the undersigned of the Information, the undersigned
will keep the Information confidential (except from such outside persons as are
assisting it in evaluating its interest in Certificates, from its accountants
and attorneys, and otherwise from such governmental or banking authorities to
which the undersigned is subject), and such Information will not, without the
prior written consent of the [Trustee] [Master Servicer] [Special Servicer], be
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; provided that the undersigned may provide all
or any part of the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but only if
such person or entity confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential.
5. 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 Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
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 OF A CERTIFICATE]
[REGISTERED HOLDER OF A CERTIFICATE]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - Citigroup Commercial Mortgage
Trust 2006-C4
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: Citigroup Commercial Mortgage Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
Ladies and Gentlemen:
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
between Citigroup Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Midland Loan Services, Inc., as master servicer (the "Master
Servicer"), X.X. Xxxxxx Company, Inc., as special servicer (the "Special
Servicer"), and LaSalle Bank National Association, as trustee (the "Trustee"),
with respect to Citigroup Commercial Mortgage Trust 2006-C4, Commercial Mortgage
Pass-Through Certificates, Series 2006-C4 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is [a [licensed] [registered] investment adviser
to___________, which is] contemplating an investment in the Class _____
Certificates.
2. The undersigned is requesting (please check as applicable):
(i) ____ information (the "Information") for use in evaluating
the possible investment described above as identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement; or
L-2-1
(ii) ____ a password [and username] pursuant to Section 4.02 of
the Pooling and Servicing Agreement for access to information (also,
the "Information") provided on the [Trustee's] [Master Servicer's]
[Special Servicer's] Internet Website.
3. In connection with accessing the website of the [Master Servicer]
[Trustee] [Special Servicer], the undersigned hereby agrees to register, execute
or accept an access agreement and accept a disclaimer, as and to the extent
required by the [Master Servicer] [Trustee] [Special Servicer] in accordance
with Section 4.02 of the Pooling and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer's] [Special
Servicer's] disclosure to the undersigned of the Information, the undersigned
will keep the Information confidential (except [from such outside persons as are
assisting it in making the investment decision described in paragraph 1 above,
from its accountants and attorneys, and otherwise] from such governmental or
banking authorities and agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the [Trustee] [Master
Servicer] [Special Servicer], be 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.
5. 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 Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
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.
[PROSPECTIVE PURCHASER OF A CERTIFICATE
OR INTEREST THEREIN][LICENSED/REGISTERED
INVESTMENT ADVISER]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
L-2-2
EXHIBIT M
FORM OF PURCHASE OPTION NOTICE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - Citigroup
Commercial Mortgage Trust 2006-C4
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: Citigroup Commercial Mortgage Trust 2006-C4,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: Citigroup Commercial Mortgage Trust 2006-C4
Re: Citigroup Commercial Mortgage Trust 2006-C4,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
(the "Subject Mortgage Loan") 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, by and among Citigroup Commercial Mortgage Securities
Inc., as depositor, Midland Loan Services, Inc., as master servicer, X.X. Xxxxxx
Company, Inc., as special servicer, and LaSalle Bank National Association, as
trustee. Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Pooling and Servicing Agreement.
The undersigned Option Holder [is the Special Servicer] [is the
Majority Controlling Class Certificateholder] [a ShopKo Portfolio Non-Trust Loan
Noteholder] [acquired its Purchase Option from the [Special Servicer] [Majority
Controlling Class Certificateholder] on _________].
The undersigned Option Holder is exercising its Purchase Option at the
cash price of $______________, which amount equals or exceeds the related Option
Price, as defined in Section 3.18(c) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of the date hereof, [the undersigned Option
Holder] [______________, an Affiliate of the undersigned Option Holder] will
deliver the Option Price to or at the direction of the Special Servicer in
exchange for the release of the Subject Mortgage Loan and delivery of the
related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and provide
the Special Servicer with such instruments of transfer or assignment, in each
case without recourse, as shall be
M-1
reasonably necessary to vest in it or its designee the ownership of the Subject
Mortgage Loan, together with such other documents or instruments as the Special
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 that the
undersigned Option Holder, or its designee, shall be obligated to close its
purchase of the Subject Mortgage Loan in accordance with the terms and
conditions of this letter and Section 3.18 of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:
------------------------------------
Name:
Title:
[By signing this letter in the space provided below, the [Special Servicer]
[Majority Controlling Class Certificateholder] hereby acknowledges and affirms
that it transferred its Purchase Option to the Option Holder identified above on
[_________].]
[_____________________________]
By:
---------------------------------
Name:
Title:
M-2
EXHIBIT N
[FORM OF DEFEASANCE CERTIFICATION]
To: [_____________]
From: Midland Loan Services, Inc., in its capacity as Master Servicer (the
"Master Servicer") under the Pooling and Servicing Agreement, dated as of
June 1, 2006 (the "Pooling and Servicing Agreement"), among the Master
Servicer, LaSalle Bank National Association, as Trustee, and others.
Date: __________, 20___
Re: Citigroup Commercial Mortgage Trust 2006-C4,
Commercial Mortgage Pass-Through Certificates Series 2006-C4
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names: _______________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
___ a full defeasance of the entire principal balance of the Mortgage Loan; or
___ a partial defeasance of a portion of the principal balance of the Mortgage
Loan that represents an allocated loan amount of $____________ or _______%
of the entire principal balance of the Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes 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:
(ii) The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
(iii) The defeasance was consummated on __________, 20__.
N-1
(iv) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940, as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for 'AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance Criteria
2000, as amended, to the date of the defeasance, (iii) are rated 'AAA' by
S&P, (iv) if they include a principal obligation, the principal due at
maturity cannot vary or change, and (v) are not subject to prepayment, call
or early redemption.
(v) The Master Servicer received an opinion of counsel (from counsel
approved by Master Servicer in accordance with the Servicing Standard) that
the defeasance will not result in an Adverse REMIC Event.
(vi) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vii) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the S&P Criteria) in the name of the Defeasance Obligor, which account
is maintained as a securities account by a securities intermediary and has
been pledged to the Trustee.
(viii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to the Trustee, (ii)
require the securities intermediary to make the scheduled payments on the
Mortgage Loan from the proceeds of the defeasance collateral directly to
the Servicer's collection account in the amounts and on the dates specified
in the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the pledged
securities account only after the Mortgage Loan has been paid in full, if
any such release is permitted, (v) prohibit transfers by the Defeasance
Obligor of the defeasance collateral and subordinate liens against the
defeasance collateral, and (vi) provide for payment from sources other than
the defeasance collateral or other assets of the Defeasance Obligor of all
fees and expenses of the securities intermediary for administering the
defeasance and the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
(ix) The Master Servicer received written confirmation from a firm of
independent certified public accountants, who were approved by Master
Servicer in accordance with the Servicing Standard 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 after the defeasance
N-2
including the payment in full of the Mortgage Loan (or the allocated
portion thereof in connection with a partial defeasance) on its Maturity
Date (or, in the case of an ARD Loan, on its Anticipated Repayment 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, and (iii) interest income from the defeasance collateral to the
Defeasance Obligor in any calendar or fiscal 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.
(x) The Mortgage Loan is not among the ten (10) largest loans in the
pool. The entire principal balance of the Mortgage Loan as of the date of
defeasance was less than both $[______] and five percent of the pool
balance, which is less than [__]% of the aggregate Certificate Principal
Balance of the Certificates as of the date of the most recent Trustee's
Distribution Date Statement received by us (the "Current Report").
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
[SIGNATURE PAGE FOLLOWS]
N-3
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
MIDLAND LOAN SERVICES, INC.
By:
------------------------------------
Name:
Title:
N-4
EXHIBIT O
FORM OF DEPOSITOR CERTIFICATION
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2006-C4 (THE "CERTIFICATES")
I, [identify the certifying individual], a [title] of Citigroup
Commercial Mortgage Securities Inc., the depositor into the above-referenced
Trust, certify that:
1. I have reviewed this report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report of
Citigroup Commercial Mortgage Trust 2006-C4 (the "Exchange Act periodic
reports");
2. 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 report;
3. Based on my knowledge, all of the distribution, servicing and other
information required under Form 10-D for the period covered by this report is
included in the Exchange Act periodic reports;
4. 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 reports, the servicers have fulfilled
their obligations under the servicing agreement(s) in all material respects; and
5. [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.] [SUBJECT TO MODIFICATION TO ADDRESS
MISSING REPORTS]
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: X.X. Xxxxxx
Company, Inc., Midland Loan Services, Inc. and LaSalle Bank National Association
[SPECIFY OTHERS IF APPLICABLE].
Dated: ___________________
---------------------------------------------
President and Chief Executive Officer
Citigroup Commercial Mortgage Securities Inc.
O-1
EXHIBIT P
FORM OF TRUSTEE CERTIFICATION
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2006-C4 (THE "CERTIFICATES")
I, [identify the certifying individual], a [title] of LaSalle Bank
National Association (the "Trustee"), certify to Citigroup Commercial Mortgage
Securities Inc. and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification in delivering
the Certification required by the pooling and servicing agreement relating to
the Certificates (capitalized terms used herein without definition shall have
the meanings assigned to such terms in that pooling and servicing agreement),
that:
1. I have reviewed this annual report on Form 10-K and all reports on
Form 10-D required to be filed in respect of the period covered by this report
on Form 10-K of Citigroup Commercial Mortgage Trust 2006-C4 (the "Exchange Act
periodic reports");
2. 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 as of the
last day of the period covered by this annual report;
3. Based on my knowledge, all of the distribution, servicing and other
information received or calculated by the Trustee under the pooling and
servicing agreement relating to the Certificates and required to be provided
under Form 10-D for the period covered by this report is included in the
Exchange Act periodic 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 in this
report under Item 1123 of Regulation AB, and except as disclosed in the Exchange
Act periodic reports, the Trustee has fulfilled its obligations in all material
respects under the pooling and servicing agreement relating to the Certificates;
and
5. 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
with respect to the Trustee required to be included in Form 10-K in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been included as an exhibit to Form 10-K, except as otherwise disclosed in Form
10-K. Any material instances of noncompliance described in such reports have
been disclosed in such report on Form 10-K.
P-1
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
By:
------------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
P-2
EXHIBIT Q-1
FORM OF MASTER SERVICER CERTIFICATION
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4 (THE "TRUST"), COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES SERIES 2006-C4 (THE "CERTIFICATES")
I, [identify the certifying individual], a [title] of Midland Loan
Services, Inc. (the "Master Servicer"), in such capacity on behalf of the Master
Servicer, certify to Citigroup Commercial Mortgage Securities Inc. (the
"Depositor") and its officers, directors and affiliates, to the extent that the
following matters are within our normal areas of responsibilities and duties
under the pooling and servicing agreement relating to the Certificates and with
the knowledge and intent that they will rely upon this certification
(capitalized terms used herein without definition shall have the meanings
assigned to such terms in such pooling and servicing agreement), that:
1. I (or appropriate officers or employees of the Master Servicer
under my supervision) have reviewed the servicing reports relating to the Trust
delivered by the Master Servicer to the trustee pursuant to the pooling and
servicing agreement relating to the Certificates covering the Exchange Act
Reporting Year [__];
2. Based on my knowledge, and assuming that the information regarding
the mortgage loans, the mortgagors or the mortgaged properties in the Prospectus
(the "Mortgage Information") does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statement made, in
the light of the circumstances under which such statements were made, not
misleading (but only to the extent that such Mortgage Information is or shall be
used by the Master Servicer to prepare the servicing reports), the servicing
information in these reports (including information relating to actions of the
Master Servicer and/or payments and other collections on and characteristics of
the Mortgage Loans and REO Properties, and/or relating to the Master Servicer,
its Affiliates and/or any and all sub-servicers, subcontractors and agents of
the Master Servicer), 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 with respect to Exchange Act Reporting Year [__];
3. Based on my knowledge, and assuming that the special servicer
timely delivered to the Master Servicer all servicing information required to be
provided to the Master Servicer by the special servicer under the pooling and
servicing agreement, the servicing information (including information relating
to actions of the Master Servicer and/or payments and other collections on and
characteristics of the Mortgage Loans and REO Properties, and/or relating to the
Master Servicer, its Affiliates and/or any and all sub-servicers, subcontractors
and agents of the Master Servicer) required to be provided to the trustee by the
Master Servicer under the pooling and servicing agreement is included in the
servicing reports delivered by the Master Servicer to the trustee;
Q-1-1
4. I am responsible for reviewing the activities performed by the
Master Servicer and based on my knowledge and the compliance review(s) conducted
in preparing the servicer compliance statement with respect to the Master
Servicer required in the report on Form 10-K with respect to the Trust for
Exchange Act Reporting Year [__] under Item 1123 of Regulation AB, and except as
disclosed in such servicer compliance statement, the Master Servicer has
fulfilled its obligations under the pooling and servicing agreement in all
material respects; and
5. All Annual Statements of Compliance and all Annual Assessment
Reports and their related Annual Attestation Reports required to be provided to
the trustee and the Depositor by the Master Servicer or, if retained thereby,
any Additional Servicer or Sub-Servicing Function Participant under or as
contemplated by the pooling and servicing agreement relating to the Certificates
have been provided thereby, with the following exceptions:
___________________________________. Based on my knowledge, there are no
significant deficiencies relating to the Master Servicer's or any such other
party's compliance with the Servicing Criteria, 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 3.14 of the
pooling and servicing agreement relating to the Certificates, except as
disclosed in such Annual Statements of Compliance and Annual Assessment Reports.
In giving the certification above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [names of
sub-servicers].
Notwithstanding the assumption made in item 2 of this certification,
the Master Servicer is not entitled to make such assumption with respect to
Mortgage Information that, on or before five days prior to the Determination
Date for the related servicing report, (a) the Master Servicer has been notified
in writing by a party to the pooling and servicing agreement, any Mortgage Loan
Seller (as defined in the pooling and servicing agreement relating to the
Certificates), or any Affiliate thereof, was incorrect, or (b) the Master
Servicer would have known was incorrect in performing its servicing obligations
under the pooling and servicing agreement in accordance with the servicing
standards (as defined in the pooling and servicing agreement relating to the
Certificates).
Dated: _____________
---------------------------------------
[Title]
Midland Loan Services, Inc.
Q-1-2
EXHIBIT Q-2
FORM OF SPECIAL SERVICER CERTIFICATION
CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C4 (THE "TRUST"), COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES SERIES 2006-C4 (THE "CERTIFICATES")
I, [identify the certifying individual], a [title] of X.X. Xxxxxx
Company, Inc. (the "Special Servicer"), certify to Citigroup Commercial Mortgage
Securities Inc. (the "Depositor") and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification in
delivering the certification required by the pooling and servicing agreement
relating to the Certificates (capitalized terms used herein without definition
shall have the meanings assigned to such terms in that pooling and servicing
agreement), that:
1. I have reviewed the servicing reports relating to the Trust
delivered by the Special Servicer to the master servicer and/or the trustee,
pursuant to the pooling and servicing agreement relating to the Certificates,
covering the Exchange Act Reporting Year [__];
2. Based on my knowledge, the servicing information (including
information relating to actions of the Special Servicer and/or payments and
other collections on and characteristics of the Mortgage Loans and REO
Properties, and/or relating to the Special Servicer, its Affliates and/or any
and all sub-servicers, subcontractors and agents of the Special Servicer) in
these reports delivered by the Special Servicer, 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 with respect to the Exchange Act
Reporting Year [__];
3. Based on my knowledge, the servicing information (including
information relating to actions of the Special Servicer and/or payments and
other collections on and characteristics of the Mortgage Loans and REO
Properties, and/or relating to the Special Servicer, its Affliates and/or any
and all sub-servicers, subcontractors and agents of the Special Servicer)
required to be provided to the master servicer and/or the trustee by the Special
Servicer during the Exchange Act Reporting Year [__] under the pooling and
servicing agreement relating to the Certificates, is included in the servicing
reports delivered by the Special Servicer to the master servicer and/or trustee;
4. I am responsible for reviewing the activities performed by the
Special Servicer and based on my knowledge and the compliance review(s)
conducted in preparing the servicer compliance statement with respect to the
Special Servicer required in the report on Form 10-K with respect to the Trust
for Exchange Act Reporting Year [__] under Item 1123 of Regulation AB, and
except as disclosed in such servicer compliance statement, the Special Servicer
has fulfilled its obligations under the pooling and servicing agreement in all
material respects; and
5. All Annual Statements of Compliance and all Annual Assessment
Reports and their related Annual Attestation Reports required to be provided to
the Trustee and the
Q-2-1
Depositor by the Special Servicer or, if retained thereby, any Additional
Servicer or Sub-Servicing Function Participant under or as contemplated by the
pooling and servicing agreement relating to the Certificates have been provided
thereby, with the following exceptions: ___________________________________.
Based on my knowledge, there are no significant deficiencies relating to the
Special Servicer's or any such other party's compliance with the Servicing
Criteria, 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 3.14 of the pooling and servicing agreement
relating to the Certificates, except as disclosed in such Annual Statements of
Compliance and Annual Assessment Reports.
Dated: _____________
---------------------------------------
[Title]
X.X. Xxxxxx Company, Inc.
Q-2-2
