EXHIBIT 4.1
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor,
MIDLAND LOAN SERVICES, INC.,
as Master Servicer and Special Servicer,
and
XXXXX FARGO BANK, N.A.,
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
$1,934,069,324
Commercial Mortgage Pass-Through Certificates
Series 2006-C3
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TABLE OF CONTENTS
Section
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS
IN RESPECT OF THE MORTGAGE POOL
Section 1.01 Defined Terms
Section 1.02 General Interpretive Principles
Section 1.03 Certain Calculations in Respect of the Mortgage Pool
Section 1.04 Cross-Collateralized Mortgage Loans
Section 1.05 Certain Adjustments to the Principal Distributions on
the Certificates
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF UNCERTIFICATED LOWER-TIER INTERESTS;
EXECUTION OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans
Section 2.02 Acceptance of Mortgage Assets by Trustee
Section 2.03 Certain Repurchases and Substitutions of Mortgage Loans by
the Mortgage Loan Sellers and the Column Performance
Guarantor; the Purchase Price Security Deposit Account and
the Special Reserve Account
Section 2.04 Representations and Warranties of the Depositor
Section 2.05 Representations and Warranties of the Master Servicer
Section 2.06 Representations and Warranties of the Special Servicer
Section 2.07 Reserved.
Section 2.08 Reserved.
Section 2.09 Representations, Warranties and Covenants of the Trustee
Section 2.10 Issuance of Uncertificated Lower-Tier Interests; Execution
of Certificates
Section 2.11 Acceptance of Grantor Trust by Trustee; Issuance of the
Class V Certificates
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans
Section 3.02 Collection of Mortgage Loan Payments
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts
Section 3.04 Collection Accounts, Distribution Account, Interest Reserve
Account and Excess Liquidation Proceeds Account
Section 3.05 Permitted Withdrawals From the Collection Account, the
Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account
Section 3.06 Investment of Funds in the Collection Account, Servicing
Accounts, Reserve Accounts and the REO Account
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage
Section 3.08 Enforcement of Alienation Clauses
Section 3.09 Realization Upon Defaulted Mortgage Loans
Section 3.10 Trustee to Cooperate; Release of Mortgage Files
Section 3.11 Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances
Section 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports
Section 3.13 Reserved
Section 3.14 Reserved
Section 3.15 Access to Certain Information
Section 3.16 Title to REO Property; REO Account
Section 3.17 Management of REO Property
Section 3.18 Fair Value Purchase Option; Sale of REO Properties
Section 3.19 Additional Obligations of Master Servicer
Section 3.20 Modifications, Waivers, Amendments and Consents
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping
Section 3.22 Sub-Servicing Agreements
Section 3.23 Controlling Class Representative
Section 3.24 Certain Rights and Powers of the Controlling Class
Representative
Section 3.25 Replacement of Special Servicer
Section 3.26 Application of Default Charges
Section 3.27 Authenticating Agent
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions
Section 4.02 Trustee Report; Certain Other Reports
Section 4.03 P&I Advances
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses
Section 4.05 Calculations
Section 4.06 Grantor Trust Reporting
Section 4.07 Compliance with Withholding Requirements
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates
Section 5.02 Registration of Transfer and Exchange of Certificates
Section 5.03 Book-Entry Certificates
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates
Section 5.05 Persons Deemed Owners
Section 5.06 Certification by Certificateholders and Certificate Owners
Section 5.07 Appointment of Paying Agent
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer
Section 6.03 Limitation on Liability of the Trustee, the Depositor, the
Master Servicer, the Special Servicer and Others
Section 6.04 Resignation of the Master Servicer or the Special Servicer
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer and the Special Servicer
Section 6.06 Master Servicer or Special Servicer as Owner of a
Certificate
ARTICLE VII
DEFAULT
Section 7.01 Events of Default
Section 7.02 Trustee to Act; Appointment of Successor
Section 7.03 Notification to Certificateholders
Section 7.04 Waiver of Events of Default
Section 7.05 Trustee Advances
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee
Section 8.02 Certain Matters Affecting the Trustee
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans
Section 8.04 Trustee May Own Certificates
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee
Section 8.06 Eligibility Requirements for Trustee
Section 8.07 Resignation and Removal of Trustee
Section 8.08 Successor Trustee
Section 8.09 Merger or Consolidation of Trustee
Section 8.10 Appointment of Co-Trustee or Separate Trustee
Section 8.11 Appointment of Custodians
Section 8.12 Access to Certain Information
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans
Section 9.02 Additional Termination Requirements
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 Tax Administration
Section 10.02 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment
Section 11.02 Recordation of Agreement; Counterparts
Section 11.03 Limitation on Rights of Certificateholders and B Loan
Holders
Section 11.04 Governing Law
Section 11.05 Notices
Section 11.06 Severability of Provisions
Section 11.07 Successors and Assigns; Beneficiaries
Section 11.08 Article and Section Headings
Section 11.09 Notices to and from the Rating Agencies and the Depositor
Section 11.10 Notices to Controlling Class Representative
Section 11.11 Complete Agreement
ARTICLE XII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 12.01 Intent of the Parties; Reasonableness
Section 12.02 Reserved
Section 12.03 Information to be Provided by the Master Servicer, the
Special Servicer, the Trustee and each Servicing Function
Participant
Section 12.04 Reserved
Section 12.05 Filing Obligations
Section 12.06 Form 10-D Filings
Section 12.07 Form 10-K Filings
Section 12.08 Xxxxxxxx-Xxxxx Certification
Section 12.09 Form 8-K Filings
Section 12.10 Form 15 Filing; Incomplete Exchange Act Filings; Amendments
to Exchange Act Reports
Section 12.11 Annual Compliance Statements
Section 12.12 Annual Reports on Assessment of Compliance with Servicing
Criteria
Section 12.13 Annual Independent Public Accountants' Attestation
Section 12.14 Exchange Act Reporting Indemnification
Section 12.15 Amendments
Section 12.16 Exchange Act Report Signatures; Delivery of Notices;
Interpretation of Grace Periods
Section 12.17 Termination of the Trustee
EXHIBITS
EXHIBIT A-1 Form of Class A-X Certificates
EXHIBIT A-2 Form of Class X-0, Xxxxx X-0, Class A-AB, Class A-3, Class
A-1-A, Class A-M, Class A-J, Class B, Class C, Class D and Class
E Certificates
EXHIBIT A-3 Form of Class F, Class G, Class H, Class J, Class K, Class L
and Class M Certificates
EXHIBIT A-4 Form of Class N, Class O, Class P and Class Q Certificates
EXHIBIT A-5 Form of Class V Certificates
EXHIBIT A-6 Form of Class R and Class LR Certificates
EXHIBIT B-1A Schedule of Original Column Mortgage Loans
EXHIBIT B-1B Schedule of Original PNC Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT B-4 Schedule of Mortgage Loans Covered by Environmental Insurance
EXHIBIT C Letters of Representations Among Depositor, Trustee and Initial
Depository
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E Reserved
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Non-
Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Non-
Registered Certificates
EXHIBIT F-1C Form I of Transferor Certificate for Transfers of Interests
in Global Certificates for Classes of Non-Registered
Certificates
EXHIBIT F-1D Form II of Transferor Certificate for Transfers of
Interests in Global Certificates for Classes of Non-Registered
Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form I of Transferee Certificate for Transfers of Interests
in Non-Registered Certificates Held in Book-Entry Form
EXHIBIT F-2D Form II of Transferee Certificate for Transfers of
Interests in Non-Registered Certificates Held in Book-Entry Form
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess
Servicing Fee Right
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess
Servicing Fee Right
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates and Non-Investment Grade
Certificates Held in Fully-Registered, Certificated Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates Held in Book-Entry Form)
EXHIBIT H-1 Form of Residual Transfer Affidavit for Transfers of Class R
and Class LR Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R and
Class LR Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of
Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Reserved
EXHIBIT K-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2 Information Request from Prospective Investor
EXHIBIT L Schedule of Designated Sub-Servicers
EXHIBIT M Form of Xxxxxxxx-Xxxxx Certification
EXHIBIT N Form of S&P Defeasance Certification
EXHIBIT O Reserved
EXHIBIT P Class A-AB Targeted Principal Balance Table
EXHIBIT U Relevant Servicing Criteria
EXHIBIT V Additional Form 10-D Disclosure
EXHIBIT W Additional Form 10-K Disclosure
EXHIBIT X Form 8-K Disclosure
EXHIBIT Y Additional Notification Disclosure
This Pooling and Servicing Agreement is dated and effective as of
June 1, 2006, among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. as
Depositor, MIDLAND LOAN SERVICES, INC. as Master Servicer and Special Servicer
and XXXXX FARGO BANK, N.A. as Trustee.
PRELIMINARY STATEMENT:
Column Financial, Inc. (together with its successors in interest,
"Column") has sold to Credit Suisse First Boston Mortgage Securities Corp.
(together with its successors in interest, the "Depositor"), pursuant to the
Mortgage Loan Purchase Agreement dated as of June 1, 2006 (as such may from time
to time hereafter be amended, modified, supplemented and/or restated, the
"Column Mortgage Loan Purchase Agreement"), between Column as seller and the
Depositor as purchaser, those mortgage loans initially identified on the
schedule attached hereto as Exhibit B-1A (such mortgage loans, the "Original
Column Mortgage Loans").
PNC Bank, National Association (together with its successors in
interest, "PNC") has sold to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of June 1, 2006 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "PNC Mortgage
Loan Purchase Agreement"), between PNC as seller and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1B (such mortgage loans, the "Original PNC Mortgage Loans").
The Depositor desires, among other things, to: (i) establish a trust
fund, consisting primarily of the Original Column Mortgage Loans and the
Original PNC Mortgage Loans (collectively, the "Original Mortgage Loans") and
certain related rights, funds and property; (ii) cause the issuance of mortgage
pass-through certificates in multiple classes, which certificates will, in the
aggregate, evidence the entire beneficial ownership interest in such trust fund;
and (iii) provide for the servicing and administration of the mortgage loans,
including the Original Mortgage Loans, and the other assets that from time to
time constitute part of such trust fund.
Xxxxx Fargo Bank, N.A. (together with its successors in interest,
"Xxxxx Fargo") desires to act as "Trustee" hereunder; Midland Loan Services,
Inc. (together with its successors in interest, "Midland") desires to act as
"Master Servicer" and "Special Servicer" hereunder.
As provided herein, the Trustee shall elect or shall cause an
election to be made that each of the Upper-Tier REMIC and the Lower-Tier REMIC
(as defined herein) be treated for federal income tax purposes as a "real estate
mortgage investment conduit" (a "REMIC").
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans 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 the "Lower-Tier REMIC." The
Class XX-0, Xxxxx XX-0, XX-XX, Class XX-0, XX-0-X, XX-X, XX-X, Class LB, Class
LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class
LL, Class LM, Class LN, Class LO, Class LP and Class LQ Uncertificated Interests
will evidence "regular interests" in the Lower-Tier REMIC (the "Uncertificated
Lower-Tier Interests") created hereunder. The sole class of "residual interests"
in the Lower-Tier REMIC created hereunder will be evidenced by the Class LR
Certificates.
As further provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Uncertificated Lower-Tier Interests
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 the "Upper-Tier REMIC." The Class A-1, Class A-2, Class A-AB,
Class A-3, Class A-1-A, Class A-X, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P and Class Q Certificates will evidence "regular interests"
in the Upper-Tier REMIC created hereunder. The sole class of "residual
interests" in the Upper-Tier REMIC created hereunder will be evidenced by the
Class R Certificates.
The portion of the Trust Fund representing Post-ARD Additional
Interest and the Post-ARD Additional Interest Distribution Account shall be
treated as a grantor trust under subpart E, Part I of subchapter J of the Code.
The Class V Certificates will represent undivided beneficial interests in the
portion of the Trust Fund consisting of the Post-ARD Additional Interest and the
Post-ARD Additional Interest Distribution Account. Additionally, the Trust Fund
shall not include any B Loan, any interest of the holders of any B Loan or any
A/B Loan Pair Custodial Account.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or notional balance ("Original Class Notional
Amount"), as applicable, and the initial ratings given each Class (as indicated
below) by the Rating Agencies (as defined herein) for each Class of Certificates
comprising the interests in the Upper-Tier REMIC created hereunder:
UPPER-TIER REMIC
Original Certificate
Balance (or, in the
case of the Class A-X
Class Pass-Through Certificates, Original Initial Ratings(1)
Designation Rate Class Notional Amount) Xxxxx'x/S&P
----------- ------------ ---------------------- ------------------
Class A-1 4.9910% $44,000,000 Aaa/AAA
Class A-2 5.8277%(2) $30,000,000 Aaa/AAA
Class A-AB 5.8277%(2) $64,000,000 Aaa/AAA
Class A-3 5.8277%(2) $826,000,000 Aaa/AAA
Class A-1-A 5.8277%(2) $389,761,000 Aaa/AAA
Class A-M 5.8277%(2) $193,494,000 Aaa/AAA
Class A-J 5.8277%(2) $137,802,000 Aaa/AAA
Class A-X 0.0255%(3) $1,934,069,324(4) Aaa/AAA
Class B 5.8277%(2) $43,517,000 Aa2/AA
Class C 5.8277%(2) $16,923,000 Aa3/AA-
Class D 5.8277%(2) $31,429,000 A2/A
Class E 5.8277%(2) $19,340,000 A3/A-
Class F 5.8277%(2) $24,176,000 Baa1/BBB+
Class G 5.8277%(2) $24,176,000 Baa2/BBB
Class H 5.8277%(2) $21,758,000 Baa3/BBB-
Class J 5.6430%(5) $7,253,000 Ba1/BB+
Class K 5.6430%(5) $7,253,000 Ba2/BB
Class L 5.6430%(5) $7,253,000 Ba3/BB-
Class M 5.6430%(5) $4,835,000 B1/B+
Class N 5.6430%(5) $7,253,000 B2/B
Class O 5.6430%(5) $7,252,000 B3/B-
Class P 5.6430%(5) $9,671,000 Caa2/CCC
Class Q 5.6430%(5) $16,923,324 NR/NR
Class R None(6) None(6)
--------------------------
(1) The Certificates marked "NR" have not been rated by the applicable Rating
Agency.
(2) The Weighted Average Net Mortgage Pass-Through Rate.
(3) The Class A-X Pass-Through Rate, as defined herein
(4) Original Notional Balance. The Class A-X Certificates will not have a Class
Principal Balance and will not be entitled to receive distributions of
principal.
(5) The lesser of 5.6430% and the Weighted Average Net Mortgage Rate.
(6) The Class R Certificates will not have a Class Principal Balance or Class
Notional Amount, will not bear interest and will not be entitled to
distributions of Prepayment Premiums or Yield Maintenance Charges. Any
Available Distribution Amounts remaining in the Upper-Tier Distribution
Account after all required distributions under this Agreement have been made
to each other Class of Certificates will be distributed to the Holders of
the Class R Certificates as owners of the residual interests in the
Upper-Tier REMIC.
The following table sets forth the original Lower-Tier Principal
Amounts or original Class Notional Amounts, as applicable, and per annum rates
of interest for the Uncertificated Lower-Tier Interests and the Class LR
Certificates:
LOWER-TIER REMIC
Original Lower-Tier
Principal Amount or
Interest Original Class
Class Rate Notional Amount
------------ -------- -------------------
Class LA-1 (1) $44,000,000
Class LA-2 (1) $30,000,000
Class LA-AB (1) $64,000,000
Class LA-3 (1) $826,000,000
Class LA-1-A (1) $389,761,000
Class LA-M (1) $193,494,000
Class LA-J (1) $137,802,000
Class LB (1) $43,517,000
Class LC (1) $16,923,000
Class LD (1) $31,429,000
Class LE (1) $19,340,000
Class LF (1) $24,176,000
Class LG (1) $234,176,000
Class LH (1) $21,758,000
Class LJ (1) $7,253,000
Class LK (1) $7,253,000
Class LL (1) $7,253,000
Class LM (1) $4,835,000
Class LN (1) $7,253,000
Class LO (1) $7,252,000
Class LP (1) $9,671,000
Class LQ (1) $16,923,324
Class LR None(2) (2)
--------------------------
(1) The interest rate of each of the indicated Classes of Uncertificated
Lower-Tier Interests is the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates will not have a Class Principal Balance or Class
Notional Amount, will not bear interest and will not be entitled to
distributions of Prepayment Premiums or Yield Maintenance Charges. Any
Available Distribution Amounts remaining in the Lower-Tier Distribution
Account after distributing the Lower-Tier Distribution Amount on each
Distribution Date shall be distributed to the Holders of the Class LR
Certificates as owners of the residual interests in the Lower-Tier REMIC.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
Section 1.01 Defined Terms
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated on
the basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on a 30/360 Basis.
"A Loan" shall mean, any of the Mortgage Loans secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule as River Commons,
Plaza de Compana, Attache Apartments and 0000 Xxxxx Xxxxxx Xxxxxx Office
Building, respectively.
"A Note" shall mean, with respect to any A Loan, the Mortgage Note
included in the Trust, which is senior in right of payment to the related B
Loan, if any, to the extent set forth in the related A/B Intercreditor
Agreement.
"A/B Intercreditor Agreement" shall mean, with respect to each A/B
Loan Pair, the related intercreditor agreement to be entered into by and between
the holders of the related A Loan and the B Loan Holder relating to the relative
rights of such holders of the respective A Loan and B Loan, as the same may be
further amended from time to time in accordance with the terms thereof.
"A/B Loan Pair" shall mean, any A Loan, together with the related
B Loan.
"A/B Loan Pair Custodial Account" shall mean, each of the
custodial sub-account(s) of the Collection Account (but which are not included
in the Trust) created and maintained by the Master Servicer pursuant to Section
3.04 on behalf of the B Loan Holder. Any such sub-account(s) shall be maintained
as a sub-account of an Eligible Account.
"A/B Material Default" shall mean, with respect to any A/B Loan
Pair, a "Material Default" under, and within the meaning of, the related A/B
Intercreditor Agreement.
"Acquisition Date" shall mean, with respect to any REO Property,
the first day on which such REO Property is considered to be acquired by the
Trust within the meaning of Treasury Regulations Section 1.856-6(b)(1), which is
the first day on which the Trust is treated as the owner of such REO Property
for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated
on the basis of the actual number of days elapsed during any calendar month (or
other applicable recurring accrual period) in a year assumed to consist of 360
days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property
collateral (including any Letter of Credit) pledged and/or delivered by or on
behalf of the related Borrower and held by the related Mortgagee to secure
payment on any Mortgage Loan.
"Additional Disclosure Notification" shall mean the form of
notification to be included with any Additional Form 10-D Disclosure, Additional
Form 10-K Disclosure or Form 8-K Disclosure Information which is attached hereto
as Exhibit Y.
"Additional Form 10-D Disclosure" shall have the meaning assigned
thereto in Section 12.06.
"Additional Form 10-K Disclosure" shall have the meaning assigned
thereto in Section 12.07.
"Additional Master Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(b).
"Additional Servicer" shall mean, individually or collectively,
(x) each Affiliate of any party as described by Section 1108(a)(2)(ii) of
Regulation AB that Services any of the Mortgage Loans and (y) each Person who is
not an Affiliate of any party as described by Section 1108(a)(2)(iii) of
Regulation AB, other than the Master Servicer, the Special Servicer and the
Trustee, who Services 10% or more of the Mortgage Loans (calculated by Stated
Principal Balance).
"Additional Special Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense (other than
Master Servicing Fees and Trustee's Fees) experienced with respect to the Trust
Fund and not otherwise included in the calculation of a Realized Loss that would
result in the Holders of any Class of Regular Certificates receiving less than
the total of their Optimal Interest Distribution Amount and Principal
Distribution Amount for any Distribution Date.
"Administrative Fee Rate" shall mean, with respect to each
Mortgage Loan (and any successor REO Mortgage Loan), the sum of the related
Master Servicing Fee Rate, plus the Trustee's Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any Advance
at the Reimbursement Rate, which is payable to the party hereto that made that
Advance, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable.
"Adverse Grantor Trust Event" shall mean either: (i) any
impairment of the status of the Grantor Trust as a "grantor trust"; or (ii) the
imposition of a tax upon the Grantor Trust or any of its assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Rated Certificates and each Rating Agency that has assigned a rating thereto, as
of any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of the
status of either the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC; or (ii)
except as permitted by Section 3.17(a), the imposition of a tax upon either the
Upper-Tier REMIC or Lower-Tier REMIC or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions set forth in Section 860G(d) of the
Code).
"Affiliate" shall mean, 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" shall mean this Pooling and Servicing Agreement, as it
may be amended, modified, supplemented or restated following the Closing Date.
"A.M. Best" shall mean A.M. Best Company or its successor in
interest.
"Anthracite" shall mean Anthracite Capital, Inc., the initial
Controlling Class Representative.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, the date specified in the related Mortgage Note, as of which
Post-ARD Additional Interest shall begin to accrue on such Mortgage Loan, which
date is prior to the Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property or
REO Property as to which an appraisal is required to be performed pursuant to
the terms of this Agreement, a narrative appraisal complying with USPAP (or, in
the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, unless the
Controlling Class Representative permits a narrative appraisal, either a limited
appraisal, a summary report or an internal valuation prepared by the Special
Servicer) that (i) indicates the "market value" of the subject property (within
the meaning of 12 CFR ss. 225.62(g) and (ii) is conducted by a Qualified
Appraiser (except that, in the case of a Mortgage Loan or an REO Mortgage Loan
with a Stated Principal Balance as of the date of such appraisal of $2,000,000
or less, unless the Controlling Class Representative permits the use of a
Qualified Appraiser, the Person performing such limited appraisal, summary
report or internal valuation may be an employee of the Special Servicer, which
employee need not be a Qualified Appraiser but shall have experience in
commercial and/or multifamily properties, as the case may be, and possess
sufficient knowledge to value such a property).
"Appraisal Reduction Amount" shall mean, for any Distribution
Date, with respect to any Required Appraisal Loan, an amount calculated by the
Special Servicer equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer or the
Trustee, all unpaid interest (net of Default Interest and, in the case of
an ARD Mortgage Loan after its Anticipated Repayment Date, Post-ARD
Additional Interest) accrued on such Required Appraisal Loan through the
most recent Due Date prior to such Determination Date, (c) all accrued
but unpaid Special Servicing Fees accrued with respect to such Required
Appraisal Loan, (d) all related unreimbursed Advances (or any Advances
reimbursed by the Trust Fund out of general collections on the Mortgage
Pool) made by or on behalf of the Master Servicer, the Special Servicer
or the Trustee with respect to such Required Appraisal Loan, together
with all unpaid Advance Interest accrued on such Advances, and (e) all
currently due but unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents in respect of the related
Mortgaged Property or REO Property, as applicable; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value (subject to such downward adjustment as the Special Servicer deems
appropriate in accordance with the Servicing Standard, without implying
any obligation to do so) of the related Mortgaged Property or REO
Property, as applicable, as determined by the most recent relevant
Appraisal acceptable for purposes of Section 3.19(c) hereof, over (ii)
the amount of any obligation(s) secured by any liens on such Mortgaged
Property or REO Property, as applicable, that are prior to the lien of
such Required Appraisal Loan, and (y) any Escrow Payments, Reserve Funds
and/or Letters of Credit held by the Master Servicer or the Special
Servicer with respect to such Required Appraisal Loan, the related
Mortgaged Property or any related REO Property (exclusive of any such
Escrow Payments and Reserve Funds, the application of which was assumed
in determining the Appraised Value of the related Mortgaged Property or
REO Property, as applicable, referred to in clause (2)(x)(i) of this
definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Mortgage Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(c), with
respect to the related Mortgaged Property during the 12-month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property as reflected in such
Appraisal, and (iii) no new Appraisal is obtained or conducted, as applicable in
accordance with Section 3.19(c), within 60 days after such Appraisal Trigger
Event, then (x) until such new Appraisal is obtained or conducted, as applicable
in accordance with Section 3.19(c), the Appraisal Reduction Amount shall equal
25% of the Stated Principal Balance of such Required Appraisal Loan, and (y)
upon receipt or performance, as applicable in accordance with Section 3.19(c),
of such new Appraisal by the Special Servicer, the Appraisal Reduction Amount
for such Required Appraisal Loan will be recalculated in accordance with the
preceding sentence of this definition.
Notwithstanding the foregoing, In the case of any A Loan, any
Appraisal Reduction Amount will be calculated in respect of the subject A/B Loan
Pair, as if it were a single underlying mortgage loan, and then allocated,
first, to the related B Loan, up to the amount of its unpaid principal balance,
and second, to the subject A Loan.
"Appraisal Trigger Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan (other
than solely as a result of an extension of the maturity
date for less than six months);
(ii) any Monthly Payment with respect to such Mortgage Loan
remains unpaid for 60 days past the Due Date for such
payment (or, with respect to a Balloon Payment, 90 days
past the Due Date or, if the related Borrower has delivered
to the Master Servicer a refinancing commitment reasonably
acceptable to the Special Servicer and continues to pay the
Assumed Monthly Payment, for such longer period (not to
exceed 150 days past the Due Date for such Balloon Payment)
during which such refinancing would occur);
(iii) the passage of 60 days after the Special Servicer receives
notice that the Borrower under such Mortgage Loan has
become the subject of bankruptcy, insolvency or similar
proceedings, which proceedings remain undischarged and
undismissed at the end of such 60-day period;
(iv) the passage of 60 days after the Special Servicer receives
notice that a receiver or similar official has been
appointed with respect to the related Mortgaged Property
(provided that such receiver or similar official continues
in that capacity at the end of such 60-day period); or
(v) the related Mortgaged Property becomes an REO Property.
"Appraised Value" shall mean with respect to each Mortgaged
Property or REO Property, the appraised value thereof (as is) based upon the
most recent Appraisal obtained or conducted, as appropriate, pursuant to this
Agreement.
"ARD Mortgage Loan" shall mean a Mortgage Loan that provides for
the accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full on or prior to its Anticipated Repayment Date.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the related Borrower in connection with the origination
of the related Mortgage Loan, as such assignment may be amended, modified,
renewed or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan delinquent in
respect of its Balloon Payment beyond the Determination Date immediately
following its scheduled maturity date (as such date may be extended in
connection with a bankruptcy, insolvency or similar proceeding involving
the related Borrower or by reason of a modification, waiver or amendment
granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20), for that scheduled maturity date and for each
subsequent Due Date as of which such Mortgage Loan remains outstanding
and part of the Trust Fund, the scheduled monthly payment of principal
and/or interest deemed to be due with respect to such Mortgage Loan on
such Due Date equal to the amount that would have been due in respect
thereof on such Due Date (other than any Default Interest) if such
Mortgage Loan had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any), in effect immediately prior to, and
without regard to the occurrence of, such maturity date; and
(b) with respect to any REO Mortgage Loan, for any Due Date as of
which the related REO Property remains part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due
in respect thereof on such Due Date equal to the Monthly Payment (or, in
the case of a Balloon Mortgage Loan described in clause (a) of this
definition, the Assumed Monthly Payment) that was due (or deemed due)
with respect to the related Mortgage Loan on the last Due Date prior to
its becoming an REO Mortgage Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Mortgage Loans (and any
related REO Properties) and on deposit in the Collection Account as of
the close of business on the Business Day preceding the related Master
Servicer Remittance Date, exclusive of the following amounts (without
duplication):
(i) all Monthly Payments collected but due on a Due Date after
the end of the related Collection Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds, all
amounts paid in connection with Mortgage Loan repurchases
pursuant to Section 2.03(b), and all other unscheduled
recoveries received after the related Determination Date;
(iii) all amounts in the Collection Account that are payable or
reimbursable to any Person from such account pursuant to
clauses (ii) through (xxvii), inclusive, of Section
3.05(a);
(iv) all amounts that are payable or reimbursable to any Person
pursuant to clauses (ii) through (vi), inclusive, of
Section 3.05(b);
(v) all Prepayment Premiums and Yield Maintenance Charges;
(vi) all amounts deposited in the Collection Account in error;
(vii) any net interest or net investment income on funds on
deposit in the Collection Account or in Permitted
Investments in which such funds may be invested;
(viii) with respect to those Mortgage Loans that are Actual/360
Mortgage Loans and any Distribution Date relating to each
Interest Accrual Period ending in each February and in any
January in a year which is not a leap year (unless, in
either case, the related Distribution Date is the Final
Distribution Date), an amount equal to the Interest Reserve
Amount to the extent such amount is to be deposited in the
Interest Reserve Account and held for future distribution
pursuant to Section 3.04;
(ix) in the case of each REO Property related to an A Loan and
during an A/B Material Default, all amounts received with
respect to the A Loan that are required to be paid to the B
Loan Holder pursuant to the terms of the related B Loan and
the related A/B Intercreditor Agreement (which amounts will
be deposited into the related A/B Loan Pair Custodial
Account pursuant to Section 3.04 and withdrawn from such
accounts pursuant to Section 3.05); and
(x) Post-ARD Additional Interest;
(b) if and to the extent not already included in clause (a)
hereof, the aggregate amount transferred with respect to the Mortgage
Loans from the REO Account to the Collection Account for such
Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made in respect of
the Mortgage Loans by the Master Servicer or the Trustee, as applicable,
for such Distribution Date pursuant to Section 4.03 or 7.05 (which P&I
Advances shall not include any related Servicing Fees or Workout Fees);
(d) all funds released from the Interest Reserve Account for
distribution on such Distribution Date; and with respect to the first
Distribution Date, the Closing Date Deposit Amount deposited into the
Distribution Account pursuant to Section 2.01(i).
(e) if and to the extent not already included in clause (a)
hereof, any Cure Payment (except for any portion thereof payable or
reimbursable to the Master Servicer or Special Servicer), made by any B
Loan Holder pursuant to the terms of the related Intercreditor Agreement
during the related Due Period and allocable to principal or interest with
respect to the related Mortgage Loan; and
(f) all funds released from the Excess Liquidation Proceeds
Account for distribution on such Distribution Date.
"B Loan" shall mean, with respect to each A Loan, the other
mortgage loan that (i) is not included in the Trust Fund, (ii) is subordinate in
right of payment to such A Loan to the extent set forth in the related A/B
Intercreditor Agreement and (iii) is secured by the same Mortgage on the same
Mortgaged Property as such A Loan.
"B Loan Holder" shall mean, with respect to any B Loan,
CBA-Mezzanine Capital Finance, LLC, or its successors and assigns, as the holder
of such B Loan.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment" shall mean any Monthly Payment payable on a
Mortgage Loan at scheduled maturity that is at least six times as large as the
normal Monthly Payment due on such Mortgage Loan.
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as
amended from time to time (Title 11 of the United States Code).
"Base Interest Fraction" shall mean, with respect to any Principal
Prepayment on any Mortgage Loan and any of the Class X-0, Xxxxx X-0, Class A-AB,
Class A-3, Class A-1-A, Class A-M, Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G and Class H Certificates, a fraction (not greater than 1)
(a) whose numerator is the amount, if any, by which (i) the Pass-Through Rate on
such Class of Certificates exceeds (ii) the Yield Rate used in calculating the
Yield Maintenance Charge with respect to such Principal Prepayment and (b) whose
denominator is the amount, if any, by which the (i) Mortgage Rate on such
Mortgage Loan exceeds (ii) the Yield Rate (as provided by the Master Servicer)
used in calculating the Yield Maintenance Charge with respect to such Principal
Prepayment; provided, however, that if such Yield Rate is greater than or equal
to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y) the
Pass-Through Rate described in clause (a)(i) above, then the Base Interest
Fraction shall be zero.
"Base Prospectus" shall mean that certain prospectus dated March
7, 2006, relating to trust funds established by the Depositor and publicly
offered mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Borrower" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Mortgage Loan, including
any Person that has not signed the related Mortgage Note but owns an interest in
the related Mortgaged Property, which interest has been encumbered to secure
such Mortgage Loan.
"Breach" shall mean, with respect to any Mortgage Loan, any breach
of representation or warranty made by a Mortgage Loan Seller pursuant to Section
4(b) or 4(d) of the related Mortgage Loan Purchase Agreement.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions in New York, New York, Minneapolis,
Minnesota, Pittsburgh, Pennsylvania, the city or cities in which the Primary
Servicing Offices of the Master Servicer and the Special Servicer are located or
the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to remain closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Series 2006-C3
Commercial Mortgage Pass-Through Certificates, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor" shall mean, with respect to any Class of
REMIC Regular Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to eight places, the numerator of which is the
related Class Principal Balance or Class Notional Amount, as the case may be,
then outstanding, and the denominator of which is the related Class Principal
Balance or Class Notional Amount, as the case may be, outstanding as of the
Closing Date.
"Certificateholder" or "Holder" shall mean the Person in whose
name a Certificate is registered in the Certificate Register, provided, however,
that: (i) neither a Disqualified Organization nor a Non-United States Tax Person
shall be a "Holder" of, or a "Certificateholder" with respect to, a Class R or
Class LR Certificate for any purpose hereof; and (ii) solely for purposes of
giving any consent, approval, direction or waiver pursuant to this Agreement
that specifically relates to the rights, duties and/or obligations hereunder of
the Depositor, the Master Servicer, the Special Servicer or the Trustee in its
respective capacity as such (other than any consent, approval or waiver
contemplated by any of Sections 3.23, 3.24 and 3.25), any Certificate registered
in the name of such party or in the name of any Affiliate thereof shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver that
specifically relates to such party has been obtained. The Certificate Registrar
shall be entitled to request and conclusively 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 "Certificateholders" or "Holders" shall reflect the rights
of Certificate Owners only insofar as they may indirectly exercise such rights
through the Depository and the Depository Participants (except as otherwise
specified herein), it being herein acknowledged and agreed that the parties
hereto shall be required to recognize as a "Certificateholder" or "Holder" only
the Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholder Reports" shall mean, collectively, the
Statement to Certificateholders and the CMSA Investor Reporting Package.
"Certificate Notional Amount" shall mean, with respect to any
Interest Only Certificate, as of any date of determination, the then notional
principal amount on which such Certificate accrues interest, equal to the
product of (a) the then Certificate Factor for the Class of Interest Only
Certificates to which such Certificate belongs, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner" shall mean, with respect to any 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" shall mean, 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
then Certificate Factor for the Class of Principal Balance Certificates to which
such Certificate belongs, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean the
register maintained and the registrar appointed pursuant to Section 5.02.
"Certification Parties" shall have the meaning assigned thereto in
Section 12.08.
"Certifying Person" shall have the meaning assigned thereto in
Section 12.08.
"Certifying Servicer" shall have the meaning assigned thereto in
Section 12.11.
"Class" shall mean, collectively, all of the Certificates or
Uncertificated Lower-Tier Interests bearing the same alphabetic and, if
applicable, numeric class designation and having the same payment terms. The
respective Classes of Certificates are designated in Section 5.01(a).
"Class A-1" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-1 Certificates.
"Class A-1 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-1."
"Class A-1 Pass-Through Rate" shall mean 4.9910% per annum.
"Class A-2" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-2 Certificates.
"Class A-2 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-2."
"Class A-2 Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class A-3" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-3 Certificates.
"Class A-3 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-3."
"Class A-3 Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class A-1-A" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-1-A Certificates.
"Class A-1-A Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-1-A."
"Class A-1-A Pass-Through Rate" shall mean a per annum rate equal
to the Weighted Average Net Mortgage Rate.
"Class A-AB" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-AB Certificates.
"Class A-AB Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-AB."
"Class A-AB Pass-Through Rate" shall mean a per annum rate equal
to the Weighted Average Net Mortgage Rate.
"Class A-M" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-M Certificates.
"Class A-M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-M."
"Class A-M Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class A-J" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-J Certificates.
"Class A-J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-J."
"Class A-J Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class A-P&I Certificates" shall mean, collectively, the Class
X-0, Xxxxx X-0, Class A-AB, Class A-3 and Class A-1-A, Certificates.
"Class A-X" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-X Certificates.
"Class A-X Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-X."
"Class A-X Component" shall mean any one of the Components.
"Class A-X Notional Amount" shall mean, with respect to the Class
A-X Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class A-X Pass-Through Rate" shall mean, as to any Distribution
Date, the per annum rate, expressed as a percentage, equal to the weighted
average of the Class A-X Strip Rates of the Components for such Distribution
Date, weighted on the basis of their respective Component Notional Balances.
"Class A-X Strip Rate" shall mean, with respect to any Class of
Components for any Distribution Date, a rate per annum equal to (i) the Weighted
Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates (provided that in no event shall
any Class A-X Strip Rate be less than zero).
"Class B" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class B Certificates.
"Class B Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "B."
"Class B Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class C" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class C Certificates.
"Class C Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "C."
"Class C Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class D" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class D Certificates.
"Class D Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "D."
"Class D Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class E" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class E Certificates.
"Class E Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "E."
"Class E Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class F" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class F Certificates.
"Class F Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "F."
"Class F Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class G" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class G Certificates.
"Class G Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "G."
"Class G Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class H" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class H Certificates.
"Class H Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "H."
"Class H Pass-Through Rate" shall mean a per annum rate equal to
the Weighted Average Net Mortgage Rate.
"Class J" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class J Certificates.
"Class J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "J."
"Class J Pass-Through Rate" shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class K" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class K Certificates.
"Class K Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "K."
"Class K Pass-Through Rate" s shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class L" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class L Certificates.
"Class L Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "L."
"Class L Pass-Through Rate" shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class LA-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-AB Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-1-A Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LF Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LO Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LR" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class LR Certificates.
"Class LR Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "LR."
"Class M" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class M Certificates.
"Class M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "M."
"Class M Pass-Through Rate" shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class N" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class N Certificates.
"Class N Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "N."
"Class N Pass-Through Rate" shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which a Class of Interest Only Certificates accrues or is
deemed to accrue interest from time to time, and in the case of the Class A-X
Certificates shall be the Class A-X Notional Amount.
"Class O" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class O Certificates.
"Class O Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "O."
"Class O Pass-Through Rate" shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class P" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class P Certificates.
"Class P Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "P."
"Class P Pass-Through Rate" shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class Principal Balance" shall mean the aggregate principal
balance outstanding from time to time of any Class of Principal Balance
Certificates.
"Class Q" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class Q Certificates.
"Class Q Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "Q."
"Class Q Pass-Through Rate" shall mean the lesser of (i) 5.6430%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class R" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class R Certificates.
"Class R Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "R."
"Class V" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class V Certificates.
"Class V Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "V."
"Clearstream" shall mean Clearstream Banking, societe anonyme, or
any successor.
"Closing Date" shall mean June 30, 2006.
"Closing Date Deposit Amount": $473,381.88, representing the
aggregate amount of interest that would have accrued at the related Net Mortgage
Rates during the Collection Period ending in June 2006 for those Mortgage Loans
that do not have their first Monthly Payment due until July 2006.
"CMSA" shall mean the Commercial Mortgage Securities Association,
or any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean 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" shall mean a data file substantially in the
form of, and containing the information called for in, the downloadable form of
the "Bond Level File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Collateral Summary File" shall mean a data file
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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Financial File" shall mean a data file 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean 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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven electronic files: (i) CMSA Loan Setup
File, (ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv)
CMSA Bond Level File, (v) CMSA Financial File, (vi) CMSA Collateral
Summary File and (vii) CMSA Special Servicer Loan File;
(b) the following eleven supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi)
CMSA Comparative Financial Status Report, (vii) CMSA Servicer Watch List,
(viii) CMSA Loan Level Reserve/LOC Report, (ix) CMSA NOI Adjustment
Worksheet, (x) CMSA Reconciliation of Funds and (xi) CMSA Advance
Recovery Report.
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or in 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 Loan Periodic Update File" shall mean a 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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Loan Setup File" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Mortgage Loan Setup 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally.
"CMSA Operating Statement Analysis Report" shall mean 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 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 Property File" shall mean 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Realized Loss Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Realized Loss 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 Reconciliation of Funds" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Reconciliation of Funds" 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally.
"CMSA REO Status Report" shall mean 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
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 Servicer Watch List" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of "Servicer Watch List" 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 Special Servicer Loan File" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Special Servicer Loan File" 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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and
regulations promulgated thereunder, including proposed regulations to the extent
that, by reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer, pursuant to Section 3.04(a), in
trust for the Certificateholders and, after the occurrence of an A/B Material
Default, any related B Loan Holder, which shall be entitled "[name of subject
Master Servicer], as the Master Servicer, in trust for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2006-C3, and the B Loan Holder, as applicable,
as their interest may appear, Collection Account." Any such account or accounts
shall be an Eligible Account and shall be part of the Lower-Tier REMIC other
than any funds therein allocable to a B Loan.
"Collection Period" shall mean, with respect to any Distribution
Date, the period commencing immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing as of the Closing Date)
and ending on and including the Determination Date in the calendar month in
which such Distribution Date occurs.
"Column" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Column Mortgage Loan" shall mean any Mortgage Loan that is either
an Original Column Mortgage Loan or a Replacement Mortgage Loan that was
delivered under the Column Mortgage Loan Purchase Agreement or the Column
Performance Guarantee in substitution for an Original Column Mortgage Loan.
"Column Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"Column Mortgage Loan Seller" shall mean Column Financial, Inc.,
together with its successors in interest.
"Column Performance Guarantee" shall mean the Guarantee dated as
of June 1, 2006, from the Column Performance Guarantor in favor of the Trustee,
relating to the obligations of Column under Section 5 of the Column Mortgage
Loan Purchase Agreement.
"Column Performance Guarantor" shall mean Credit Suisse USA, its
successor in interest or any successor guarantor under the Column Performance
Guarantee.
"Commission" shall mean the Securities and Exchange Commission or
any successor thereto.
"Compensating Interest Payment" shall mean, with respect to any
Distribution Date, any payment made by the Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Component" shall mean each of Component X-0, Xxxxxxxxx X-0,
Component A-AB, Component A-3, Component A-1-A, Component A-M, Component A-J,
Component B, Component C, Component D, Component E, Component F, Component G,
Component H, Component J, Component K, Component L, Component M, Component N,
Component O, Component P and Component Q.
"Component A-1" shall mean one of 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1 Uncertificated Interest as of any
date of determination.
"Component A-1-A" shall mean one of the 22 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-A Uncertificated Interest as of
any date of determination.
"Component A-2 shall mean one of the 22 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2 Uncertificated Interest as of any
date of determination.
"Component A-AB" shall mean one of the 22 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-AB Uncertificated Interest as of any
date of determination.
"Component A-3" shall mean one of the 22 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3 Uncertificated Interest as of any
date of determination.
"Component A-M" shall mean one of the 22 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-M Uncertificated Interest as of any
date of determination.
"Component A-J" shall mean one of the 22 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-J Uncertificated Interest as of any
date of determination.
"Component B" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LB Uncertificated Interest as of any
date of determination.
"Component C" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LC Uncertificated Interest as of any
date of determination.
"Component D" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LD Uncertificated Interest as of any
date of determination.
"Component E" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LE Uncertificated Interest as of any
date of determination.
"Component F" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LF Uncertificated Interest as of any
date of determination.
"Component G" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LG Uncertificated Interest as of any
date of determination.
"Component H" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LH Uncertificated Interest as of any
date of determination.
"Component J" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LJ Uncertificated Interest as of any
date of determination.
"Component K" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LK Uncertificated Interest as of any
date of determination.
"Component L" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LL Uncertificated Interest as of any
date of determination.
"Component M" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LM Uncertificated Interest as of any
date of determination.
"Component N" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LN Uncertificated Interest as of any
date of determination.
"Component Notional Amount" shall mean the hypothetical or
notional amount corresponding to the Lower-Tier Principal Amount on which any
Uncertificated Lower-Tier Interest accrues interest from time to time, as
calculated in accordance with the definition of the Class A-X Strip Rate.
"Component O" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LO Uncertificated Interest as of any
date of determination.
"Component P" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LP Uncertificated Interest as of any
date of determination.
"Component Q" shall mean one of the 22 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LQ Uncertificated Interest as of any
date of determination.
"Condemnation Proceeds" shall mean all cash amounts actually
received by the Trust or by the Master Servicer or the Special Servicer on its
behalf in connection with the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, exclusive of any
portion thereof required to be released to the related Borrower or any other
third-party in accordance with applicable law and/or the terms and conditions of
the related Mortgage Loan Documents or any other applicable document.
"Confidential Offering Circular" shall mean the final Confidential
Offering Circular dated June 21, 2006, relating to certain classes of the
Non-Registered Certificates.
"Controlling Class" shall mean, as of any date of determination,
the eligible Class of Principal Balance Certificates with the lowest payment
priority pursuant to Sections 4.01(a) and 4.01(b), that has a then outstanding
Class Principal Balance that is not less than 25% of its initial Class Principal
Balance; provided that, if no eligible Class of Principal Balance Certificates
has a Class Principal Balance that satisfies the foregoing requirement, then the
Controlling Class shall be the eligible Class of Principal Balance Certificates
with the lowest payment priority pursuant to Sections 4.01(a) and 4.01(b), that
has a then outstanding Class Principal Balance greater than zero. For purposes
of this definition, all of the Class A-P&I Certificates shall be treated as a
single Class and, if appropriate under the terms of this definition, shall
collectively constitute the Controlling Class.
"Controlling Class Certificateholder" shall mean any Holder of
Certificates of the related Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 3.23(a).
"Corporate Trust Office" shall mean 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 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2006-C3.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had
been a Specially Serviced Mortgage Loan but as to which all Servicing Transfer
Events have ceased to exist.
"Credit Suisse " shall mean Credit Suisse Securities (USA) LLC or
its successor in interest.
"Cross-Collateralized Group" shall mean any group of Mortgage
Loans that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan,
that is, by its terms, cross-defaulted and cross-collateralized with any other
Mortgage Loan. For the avoidance of doubt, no A Loan or B Loan shall be deemed a
Cross-Collateralized Mortgage Loan under this Agreement.
"Crossed Mortgage Loan Repurchase Criteria" shall mean (i) the
debt service coverage ratio for any related Cross-Collateralized Mortgage Loans
that remain in the Trust is not less than the debt service coverage ratio for
such Cross-Collateralized Mortgage Loans, including the affected
Cross-Collateralized Mortgage Loan, immediately preceding the repurchase or
substitution and (ii) the loan-to-value ratio for any related
Cross-Collateralized Mortgage Loans that remain in the Trust is not greater than
the loan-to-value ratio for such Cross-Collateralized Mortgage Loans including
the affected Cross-Collateralized Mortgage Loan immediately preceding the
repurchase or substitution.
"Cure Event" shall mean the exercise by any B Loan Holder of the
cure rights, if any, set forth in the related Intercreditor Agreement, in each
case in accordance with the applicable Intercreditor Agreement.
"Cure Payments" shall mean, with respect to any A/B Loan Pair, as
to which the related Intercreditor Agreement provides that a B Loan Holder shall
be entitled to cure a default under the related Mortgage Loan, the payments that
such B Loan Holder makes to the Master Servicer, Special Servicer or Trustee, as
applicable, which payments shall consist (without duplication) of all actual
costs, expenses, losses, obligations, damages, penalties, and disbursements
imposed on or incurred (whether or not yet paid) by the Master Servicer, Special
Servicer or Trustee, as applicable (including, without limitation, all
unreimbursed Advances (without regard to whether such Advance would be a
Nonrecoverable Advance), and any interest accrued thereon, Default Interest and
any servicing compensation incurred with respect to the related Mortgage Loan)
during the period of time from the expiration of the grace period under such
Mortgage Loan that gave rise to such Cure Event until such Cure Payment is made
or such other cure is otherwise effected.
"Custodian" shall mean a Person who is at any time appointed by
the Trustee pursuant to Section 8.11 as a document custodian for the Mortgage
Files.
"Cut-off Date" shall mean, individually and collectively, the
respective Due Dates for the Original Mortgage Loans in June 2006, except that
in the case of certain of the underlying mortgage loans that have their first
due date in July 2006, the Cut-off Date for those Mortgage Loans will be
considered to be the equivalent day of the month in June 2006 had their first
due date been in June 2006.
"Cut-off Date Principal Balance" shall mean, with respect to any
Original Mortgage Loan, the outstanding principal balance of such Mortgage Loan
as of its Due Date in June 2006, after application of all payments of principal
due on or before such date, whether or not received.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Defaulted Mortgage Loan" shall mean a Mortgage Loan that is at
least sixty days delinquent in respect of its Monthly Payments, or 90 days
delinquent in respect of its Balloon Payment (or, if the borrower has delivered
a refinancing commitment reasonably acceptable to the Special Servicer, for such
longer period, not to exceed 150 days beyond the date on which that Balloon
Payment was due, during which the refinancing would occur), if any, in each case
without giving effect to any grace period permitted by the related Mortgage or
Note, or if any non-monetary event of default occurs that results in the
Mortgage Loan becoming a Specially Serviced Mortgage Loan; provided, however,
that no Monthly Payment (other than a Balloon Payment) shall be deemed
delinquent if less than ten dollars of all amounts due and payable on such
Mortgage Loan has not been received.
"Default Interest" shall mean, with respect to any Mortgage Loan
(or successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Prepayment Premiums or Yield Maintenance Charges, that
represent interest (other than, if applicable, Post-ARD Additional Interest) in
excess of interest accrued on the principal balance of such Mortgage Loan (or
REO Mortgage Loan) at the related Mortgage Rate, such excess interest arising
out of a default under such Mortgage Loan.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defective Mortgage Loan" shall mean any Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that has not been
cured in all material respects.
"Definitive Certificate" shall have the meaning assigned thereto
in Section 5.03(a).
"Deleted Mortgage Loan" shall mean a Mortgage Loan that is
purchased or repurchased, as the case may be, from the Trust or replaced with
one or more Replacement Mortgage Loans, in either case as contemplated by
Section 2.03.
"Depositor" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Depository" shall mean The Depository Trust Company, or any
successor depositary hereafter named. 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 of
the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean 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" shall mean any Sub-Servicer set forth on
Exhibit L hereto and any successor thereto under the related Sub-Servicing
Agreement.
"Designated Sub-Servicer Agreement" shall mean any Sub-Servicing
Agreement between a Designated Sub-Servicer and the Master Servicer.
"Determination Date" shall mean, with respect to any calendar
month, commencing in July 2006, the 11th day of such calendar month (or, if such
11th day is not a Business Day, the next succeeding Business Day). Each
Determination Date will relate to the Distribution Date in the same calendar
month.
"Directly Operate" shall mean, with respect to any REO Property,
the furnishing or rendering of services to the tenants thereof that are not
(within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5) customarily
provided to tenants in connection with the rental of space for occupancy, the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers in the ordinary course of a trade or business,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by the Trust Fund, in each case other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Master Servicer or the Special 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 (of the type that
would be deductible under Section 162 of the Code) or capital expenditures with
respect to such REO Property.
"Discount Rate" shall have the meaning assigned thereto in Section
4.01(d).
"Disqualified Organization" shall mean 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 Xxxxxxx Mac, 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, based upon an Opinion of
Counsel delivered to the Trustee to the effect that the holding of an Ownership
Interest in a Class R or Class LR Certificate by such Person may cause the Trust
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 or Class LR 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.
"Disqualified Non-United States Tax Person" shall mean, with
respect to any Class R or Class LR Certificate, any Non-United States Tax Person
or agent thereof other than: (1) a Non-United States Tax Person that (a) holds
such Class R or Class LR Certificate and, for purposes of Treasury Regulations
Section 1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b)
certifies that it understands that, for purposes of Treasury Regulations Section
1.860E-1(c)(4)(ii), as a holder of such Class R or Class LR Certificate for
United States federal income tax purposes, it may incur tax liabilities in
excess of any cash flows generated by such Class R or Class LR Certificate and
intends to pay taxes associated with holding such Class R or Class LR
Certificate, and (c) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and has agreed to update such form
as required under the applicable Treasury regulations; or (2) a Non-United
States Tax Person that has delivered to the Transferor, the Trustee and the
Certificate Registrar an opinion of nationally recognized tax counsel to the
effect that (x) the Transfer of such Class R or Class LR Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and (y) such Transfer of such Class R or Class LR Certificate will
not be disregarded for United States federal income tax purposes.
"Distribution Account" shall mean collectively, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account and the Post-ARD
Additional Interest Distribution Account, which may be sub-accounts of a single
account.
"Distribution Date" shall mean, with respect to any calendar
month, commencing in July 2006, the fourth Business Day following the
Determination Date in such calendar month.
"Document Defect" shall mean, with respect to any Mortgage Loan,
that any document required to be part of the related Mortgage File has not been
properly executed, is missing, contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Do Not Hire List" shall mean the list, as may be updated at any
time, provided by the Depositor to the Master Servicer, Special Servicer and
Trustee, which lists certain parties identified by the Depositor as having
materially failed to comply with their respective obligations under Article XII
of this Agreement or as having materially failed to comply with any similar
Regulation AB reporting requirements under any pooling and servicing agreement
relating to any other series of certificates offered by the Depositor.
"Due Date" shall mean with respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is first
scheduled to be due (without regard to any applicable grace period).
"Earn-Out Reserve Funds" shall mean Reserve Funds as to which any
release thereof to the related Borrower is tied to conditions relating to the
economic performance, value and/or occupancy of the subject Mortgaged Property.
"XXXXX" shall mean the Electronic Data Gathering, Analysis, and
Retrieval System of the Commission, which is the computer system for the
receipt, acceptance, review and dissemination of documents submitted to the
Commission in electronic format.
"Eligible Account" shall mean any of (i) an account maintained
with a federal or state chartered depositary institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "AA-" by S&P (or A+ by S&P if the short term unsecured debt
obligations thereof are rated at least A-1 by S&P) and "Aa3" by Moody's (if the
deposits are to be held in the account for more than 30 days), or the short-term
deposit or short-term unsecured debt obligations of which are rated no less than
"P-1" by Moody's and "A-1" by S&P (if the deposits are to be held in the account
for 30 days or less), in any event at any time funds are on deposit therein,
(ii) a segregated trust account maintained with a federal or state chartered
depositary institution or trust company acting in its fiduciary capacity, which,
in the case of a state chartered depositary institution or trust company is
subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 CFR ss. 9.10(b), and which, in either case, has a
combined capital and surplus of at least $50,000,000 and is subject to
supervision or examination by federal or state authority, and provided further
that either such depository institution or its parent has long-term unsecured
debt obligations which are rated at least "Baa3" by Moody's, (iii) an account or
accounts maintained with PNC (A) so long as PNC's long-term unsecured debt
rating shall be at xxxxx "X0" from Moody's and "A" from S&P and its short-term
unsecured debt rating is at least "A-1" from S&P (if the deposits are to be held
in the account for more than 30 days) or (B) PNC's short-term deposit or
short-term unsecured debt rating shall be at least "P-1" from Moody's and "A-1"
from S&P (if the deposits are to be held in the account for 30 days or less),
and (iv) any other account that is acceptable to the Rating Agencies (as
evidenced by written confirmation to the Trustee from each Rating Agency that
the use of such account would not, in and of itself, result in an Adverse Rating
Event with respect to any Class of Rated Certificates).
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Borrower for application
toward the payment of real estate taxes, assessments, insurance premiums
(including with respect to any Environmental Insurance Policy), ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of
(a) the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, over (b) the sum of (i) the amount
needed to pay all principal, interest (including Additional Interest (if
applicable) and Default Interest), Prepayment Premiums or Yield Maintenance
Charges (as applicable) and late payment charges payable with respect to such
Mortgage Loan or related REO Loan in full (or if such amount relates to an A/B
Loan Pair, the amount needed to pay off such A/B Loan Pair in full), (ii) any
other fees that would constitute Additional Master Servicing Compensation and/or
Additional Special Servicing Compensation, (iii) any related unreimbursed
Servicing Advances, (iv) all unpaid Advance Interest on any related Advances,
and (v) any related Liquidation Fee and/or Special Servicing Fees paid or
payable in respect of such Mortgage Loan or the related REO Loan and (vi) any
other Additional Trust Fund Expenses paid or payable in respect of such Mortgage
Loan.
"Excess Liquidation Proceeds Account" shall mean the account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "Xxxxx Fargo Bank, N.A. [or the name of any successor Trustee], as
Trustee, in trust for the registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Excess Liquidation Proceeds Account." Any such account shall be an
Eligible Account and shall be an asset of the Lower-Tier REMIC.
"Excess Servicing Fees" shall mean, with respect to each Mortgage
Loan (and successor REO Mortgage Loan), that portion of the Master Servicing
Fees that accrue at a per annum rate equal to the Excess Servicing Fee Rate.
"Excess Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan (and successor REO Mortgage Loan), initially a rate per annum
equal to the related Master Servicing Fee Rate, minus the sum of (i) 0.005% (0.5
basis points) for the Master Servicer and (ii) the per annum rate applicable to
any related primary servicing fee payable to a Designated Sub-Servicer; provided
that such Excess Servicing Fee Rate shall be subject to reduction at any time
following any resignation of the Master Servicer pursuant to Section 6.04 (if no
successor is appointed in accordance with Section 6.04(b) or any termination of
such Master Servicer pursuant to Section 7.01, to the extent reasonably
necessary (as determined by the Trustee) for the Trustee to appoint a qualified
successor Master Servicer (which successor may include the Trustee) that meets
the requirements of Section 7.02 and who requires market rate master servicing
compensation (exclusive of any related primary servicing fee payable to a
Designated Sub-Servicer) that accrues at a per annum rate in excess of 0.005%
(0.5 basis points) for the Master Servicer.
"Excess Servicing Fee Right" shall mean, with respect to each
Mortgage Loan (and successor REO Mortgage loan), the right to receive Excess
Servicing Fees.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exemption-Favored Party" shall mean any of (i) Credit Suisse,
(ii) any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Credit Suisse, and (iii)
any member of any underwriting syndicate or selling group of which any Person
described in clauses (i) and (ii) is a manager or co-manager with respect to a
Class of Certificates (other than the Class R, Class LR and Class V
Certificates) that is investment grade rated by at least one Rating Agency.
"Fair Value" shall have the meaning assigned thereto in Section
3.18(b).
"Xxxxxx Xxx" shall mean the Federal National Mortgage Association
or any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or
any successor.
"Final Distribution Date" shall mean the final Distribution Date
on which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination" shall mean a determination made by
the Special Servicer, in its reasonable judgment, with respect to any Specially
Serviced Mortgage Loan or REO Property (other than a Mortgage Loan that is paid
in full and other than a Mortgage Loan or REO Property, as the case may be, that
is repurchased or replaced by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement, purchased or replaced by the Column
Performance Guarantor pursuant to the Column Performance Guarantee, purchased by
the Master Servicer, the Special Servicer or any Certificateholder(s) of a
Controlling Class pursuant to Section 9.01 or otherwise acquired by the Sole
Certificateholder(s) in exchange for all the Certificates pursuant to Section
9.01), that there has been a recovery of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that will ultimately be recoverable.
"FNMA" shall mean the Federal National Mortgage Association or any
successor thereto
"Xxxxxxx Mac" shall mean the Federal Home Loan Mortgage
Corporation or any successor.
"Form 8-K Disclosure Information" shall have the meaning assigned
thereto in Section 12.09
"GAAP" shall mean generally accepted accounting principles in the
United States.
"Global Certificate" shall mean, with respect to any Class of
Non-Registered Certificates, any related Regulation S Global Certificate or Rule
144A Global Certificate.
"Grantor Trust" shall mean the grantor trust, as defined under
subpart E of Part 1 of subchapter J of the Code, formed under Section 2.11
hereof to hold the Post-ARD Additional Interest and the Post-ARD Additional
Interest Account.
"Ground Lease" shall mean the ground lease pursuant to which any
Borrower holds a leasehold interest in the related Mortgaged Property, together
with any estoppels or other agreements executed and delivered by the ground
lessor in favor of the lender under the related Mortgage Loans.
"Group Environmental Insurance Policy" shall mean an Environmental
Insurance Policy that is maintained from time to time in respect of more than
one Mortgaged Property or REO Property.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including 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 asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory," "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, each
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the Controlling Class Representative 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, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the Controlling Class
Representative or any Affiliate thereof, and (iii) is not connected with the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the Controlling Class Representative 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, any Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the Trustee, the Controlling Class Representative or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of debt or equity securities issued by the Depositor, such
Mortgage Loan Seller, such Master Servicer, such Special Servicer, the Trustee,
the Controlling Class Representative or any such Affiliate thereof, as the case
may be, provided such ownership constitutes less than 1% of the total assets of
such Person.
"Independent Contractor" shall mean: (a) any Person that would be
an "independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class 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 Trustee, the Master Servicer or the Trust, delivered to the
Trustee and the Master Servicer), so long as the Trust Fund does not receive or
derive any income from such Person and provided that the relationship between
such Person and the Trust Fund is at arm's length, all within the meaning of
Treasury Regulations Section 1.856-4(b)(5) (except that the Master Servicer or
the Special Servicer shall not be considered to be an Independent Contractor
under the definition in this clause (i) unless an Opinion of Counsel (at the
expense of the party seeking to be deemed an Independent Contractor) has been
delivered to the Trustee to that effect), or (ii) any other Person (including
the Master Servicer and the Special Servicer) upon receipt by the Trustee and
the Master Servicer of an Opinion of Counsel (at the expense of the party
seeking to be deemed an Independent Contractor), to the effect that the taking
of any action in respect of any 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
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 Pool Balance" shall mean the aggregate Cut-off Date
Principal Balance of all the Original Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned
thereto in Section 2.03(b).
"Institutional Accredited Investor" or "IAI" shall mean 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" shall mean, with respect to any Mortgage Loan
or REO Property, any hazard insurance policy, flood insurance policy, title
insurance policy, earthquake insurance policy, Environmental Insurance Policy,
business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any Insurance
Policy, to the extent such proceeds actually received by the Trust are not
applied to the restoration of the related Mortgaged Property or REO Property or
released to the related Borrower or any other third-party in accordance with
applicable law and/or the terms and conditions of the related Mortgage Loan
Documents or any other applicable document.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(c).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any Class of Regular Certificates or
any Uncertificated Lower-Tier Interest, consisting of one of the following: (i)
a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any Class of
Regular Certificates or Uncertificated Lower-Tier Interests, for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Only Certificates" shall mean the Class A-X
Certificates.
"Interest Reserve Account" shall mean the segregated account or
sub-account created and maintained by the Trustee pursuant to Section 3.04(c) in
trust for the Certificateholders, which shall be entitled "Xxxxx Fargo Bank,
N.A. [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2006-C3, Interest Reserve
Account." The Interest Reserve Account shall be an asset of the Lower-Tier
REMIC.
"Interest Reserve Amount" shall mean, with respect to each
Interest Reserve Mortgage Loan and each Distribution Date that occurs during the
month of February of 2007 and each year thereafter or during the month of
January of 2007 and each year thereafter that is not a leap year (unless, in
either case, the related Distribution Date is the Final Distribution Date), an
amount equal to one-day's interest at the related Net Mortgage Rate on the
Stated Principal Balance of such Interest Reserve Mortgage Loan as of the end of
the related Collection Period (but prior to the application of any amounts due
on such Due Date), to the extent that a Monthly Payment is received in respect
thereof for such Due Date on or before the related Master Servicer Remittance
Date or a P&I Advance is made in respect thereof for such Due Date on the
related Master Servicer Remittance Date.
"Interest Reserve Mortgage Loan" shall mean any Actual/360
Mortgage Loan (or successor REO Mortgage Loan).
"Interest Shortfall" shall mean, as to any Distribution Date and
any Class of Regular Certificates, when the amount distributed on such
Distribution Date in respect of interest is less than the Optimal Interest
Distribution Amount.
"Interest Shortfall Amount" shall mean, as to any Distribution
Date and any Class of Regular Certificates, the amount, if any, by which the
amount distributed on such Class on such Distribution Date in respect of
interest is less than the related Optimal Interest Distribution Amount.
"Interested Person" shall mean the Depositor, the Master Servicer,
the Special Servicer, any Independent Contractor engaged by the Special
Servicer, any Holder of a Certificate or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended.
"IRS" shall mean the Internal Revenue Service or any successor.
"Issue Price" shall mean, with respect to each Class of
Certificates, the "issue price" as defined in the Code and Treasury regulations
promulgated thereunder.
"JPM" shall mean X.X. Xxxxxx Securities Inc.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts received by or on behalf of the Trust thereon during any
Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan
due or deemed due on a Due Date in a previous Collection Period or on a Due Date
during or prior to June 2006, and not previously recovered; and (b) with respect
to any REO Mortgage Loan, all amounts received by or on behalf of the Trust in
connection with the related REO Property during any Collection Period, whether
as Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues
or otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the predecessor Mortgage Loan or late collections
of the principal and/or interest portions of an Assumed Monthly 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.
"Latest Possible Maturity Date" shall mean, with respect to any
Class of Regular Certificates or Uncertificated Lower-Tier Interests, the date
designated as the "latest possible maturity date" thereof solely for purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
"Letter of Credit" shall mean, with respect to any Mortgage Loan,
any third-party letter of credit delivered by or at the direction of the
Borrower pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event" shall mean: (a) with respect to any Mortgage
Loan, any of the following events--(i) such Mortgage Loan is paid in full, (ii)
a Final Recovery Determination is made with respect to such Mortgage Loan, (iii)
such Mortgage Loan is repurchased or replaced by a Mortgage Loan Seller pursuant
to the related Mortgage Loan Purchase Agreement or purchased or replaced by the
Column Performance Guarantor pursuant to the Column Performance Guarantee, in
each case as contemplated by Section 2.03, (iv) such Mortgage Loan is purchased
by the Special Servicer, any Certificateholder(s) of a Controlling Class or any
assignee of the foregoing pursuant to Section 3.18 or by the Master Servicer,
the Special Servicer or any Certificateholder(s) of the Controlling Class
pursuant to Section 3.18 or Section 9.01, (v) the purchase of the related
Mortgage Loan by the related mezzanine lender pursuant to the related mezzanine
intercreditor agreement, (vi) in the case of any A/B Loan Pair, the purchase of
the related A Loan by the related B Loan Holder pursuant to the related A/B
Intercreditor Agreement, or (vii) such Mortgage Loan is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01; and (b) with respect to any REO Property (and the related REO Mortgage
Loan), 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 any Certificateholder(s) of the
Controlling Class pursuant to Section 9.01, or (iii) such REO Property is
acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
Section 3.18 or final payoff of a Corrected Mortgage Loan (including legal fees
and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes, any Liquidation Fee or Workout Fee associated
with a final payoff of a Corrected Mortgage Loan and any other unreimbursed
Additional Trust Fund Expenses associated with such Mortgage Loan).
"Liquidation Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property (other than any Specially Serviced
Mortgage Loan or REO Property that is (i) purchased by the Special Servicer or
any Certificateholder(s) of a Controlling Class or any assignee of the foregoing
pursuant to Section 3.18; provided that if any such party assigns its Purchase
Option to an unaffiliated third party without any consideration therefor (other
than nominal consideration), a Liquidation Fee shall be payable pursuant to
Section 3.11, (ii) purchased by the Master Servicer, the Special Servicer or any
Certificateholder(s) of the Controlling Class pursuant to Section 9.01, (iii)
acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01, (iv) purchased by the related B Loan
Holder pursuant to the related A/B Intercreditor Agreement so long as such
Specially Serviced Mortgage Loan or REO Property is purchased within 90 days of
the right to purchase arising (or such shorter time period as may be specified
in such related A/B Intercreditor Agreement), (v) repurchased or replaced no
later than the end of the applicable Initial Resolution Period and any
applicable Resolution Extension Period, as a result of a Material Breach or a
Material Document Defect, by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement or by the Column Performance Guarantor pursuant
to the Column Performance Guarantee, or (vi) the actual purchase of a Mortgage
Loan by a mezzanine lender pursuant to the terms of any related intercreditor
agreement within 90 days (or in the case of the 000-000 Xxxxx Xxxxxx mortgage
loan, 120 days, or with respect to any of the other loans, any shorter time
frame as set forth in the related intercreditor agreement) of such Mortgage Loan
becoming specially serviced to the extent not collected from the related
mezzanine lender pursuant to the related intercreditor agreement) the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0% (100 basis points).
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) actually received by
the Trust in connection with: (i) the liquidation of a Mortgaged Property or
other collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Defaulted Mortgage Loan by the Special
Servicer, any Certificateholder(s) of a Controlling Class or any assignee of the
foregoing pursuant to Section 3.18; (iv) the repurchase of a Mortgage Loan by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement or
the purchase of a Column Mortgage Loan by the Column Performance Guarantor
pursuant to the Column Performance Guarantee; (v) the substitution of one or
more Replacement Mortgage Loans for a Deleted Mortgage Loan by a Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase Agreement or by the Column
Performance Guarantor pursuant to the Column Performance Guarantee (such cash
amounts being any Substitution Shortfall Amounts); (vi) the purchase of a
Mortgage Loan or REO Property by the Master Servicer, the Special Servicer or
any Certificateholder(s) of the Controlling Class pursuant to Section 9.01;
(viii) the acquisition of any Mortgage Loan or REO Property by the Sole
Certificateholder(s) in exchange for all the Certificates pursuant to Section
9.01; (ix) the purchase of an A Loan by the related B Loan Holder pursuant to
the related A/B Intercreditor Agreement or (x) the purchase of a Mortgage Loan
by the related mezzanine lender pursuant to the related mezzanine intercreditor
agreement. Except for the purposes of Section 3.11(c), "Liquidation Proceeds"
shall also include any payments to the Trust by a Mortgage Loan Seller or the
Column Performance Guarantor as contemplated by the second paragraph of Section
2.03(b), and any amounts transferred from a Purchase Price Security Deposit
Account to the Collection Account pursuant to Section 2.03(b) and from a Special
Reserve Account to the Collection Account pursuant to Section 2.03(d).
"Loan Group": Either of Loan Group No. 1 or Loan Group No. 2.
"Loan Group No. 1": Collectively, all of the Mortgage Loans that
are identified on the Mortgage Loan Schedule as belonging to Loan Group No. 1
and any successor REO Mortgage Loans with respect thereto.
"Loan Group No. 2": Collectively, all of the Mortgage Loans that
are identified on the Mortgage Loan Schedule as belonging to Loan Group No. 2
and any successor REO Mortgage Loans with respect thereto.
"Loan-to-Value Ratio" shall mean, with respect to any Mortgage
Loan, as of any date of determination, the fraction, expressed as a percentage,
the numerator of which is the principal balance of such Mortgage Loan (or, in
the case of any A Loan, of the A/B Loan Pair) at the time of determination, and
the denominator of which is the Appraised Value of the related Mortgaged
Property.
"LOC Cash Reserve" shall have the meaning assigned thereto in the
definition of "Mortgage File."
"Lower-Tier Distribution Account" shall mean the account, accounts
or sub-accounts created and maintained by the Trustee, pursuant to Section
3.04(b), in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Trustee, for the benefit of Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 0000-X0, Xxxxx-Xxxx Distribution Account." Any such account or accounts
shall be an Eligible Account or a subaccount of an Eligible Account.
"Lower-Tier Distribution Amount" shall have the meaning assigned
thereto in Section 4.01.
"Lower-Tier Principal Amount" shall mean, with respect to any
Class of Uncertificated Lower-Tier Interests, (i) on or prior to the first
Distribution Date, an amount equal to the Original Lower-Tier Principal Amount
of such Class as specified in the Preliminary Statement hereto, and (ii) as of
any date of determination after the first Distribution Date, an amount equal to
the Class Principal Balance of the Class of Related Certificates on the
Distribution Date immediately prior to such date of determination (determined
after taking into account any distributions made on such Distribution Date
pursuant to Section 4.01(a) and (b) and any Realized Loss allocated to such
Class pursuant to Section 4.04).
"Lower-Tier REMIC" shall mean, one of two separate REMICs
comprising the Trust Fund, the assets of which consist of the Mortgage Loans
(exclusive of Post-ARD Additional Interest), any REO Property with respect
thereto (exclusive of any interest therein that a B Loan Holder may have), such
amounts as shall from time to time be held in any Collection Account, the
Interest Reserve Account, any REO Account (exclusive of any such amounts that
are allocable to a B Loan), the Excess Liquidation Proceeds Account (exclusive
of any such amounts that are allocable to a B Loan), if any, the Lower-Tier
Distribution Account, any A/B Loan Pair Custodial Account (exclusive of any such
amounts that are allocable to a B Loan), the Closing Date Deposit Amount and,
except as otherwise provided in this Agreement, all other property included in
the Trust Fund (other than Post-ARD Additional Interest and the Post-ARD
Additional Interest Distribution Account) that is not in the Upper-Tier REMIC.
"Majority Controlling Class Certificateholder" shall mean, as of
any date of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer" shall mean Midland, in its capacity as master
servicer with respect to the Mortgage Pool and any related REO Properties
hereunder, or any successor master servicer with respect to the Mortgage Pool
and any related REO Properties appointed as provided herein.
"Master Servicer Remittance Amount" shall mean, with respect to
the Master Servicer for any Master Servicer Remittance Date, an amount equal to
(a) all amounts on deposit in such Master Servicer's Collection Account as of
the commencement of business on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
payments of principal (including Principal Prepayments) and interest (including
Post-ARD Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received by or on behalf of the Trust after the end of the
related Collection Period, (iii) any Prepayment Premiums and/or Yield
Maintenance Charges received by or on behalf of the Trust after the end of the
related Collection Period, (iv) any Excess Liquidation Proceeds, (v) any amounts
payable or reimbursable to any Person from such Collection Account pursuant to
clauses (ii) through (xxii), (xxiv) and (xxvii) of Section 3.05(a), and (vi) any
amounts deposited in such Collection Account in error; provided that the Master
Servicer Remittance Amount, with respect to the Master Servicer, for the Master
Servicer Remittance Date that occurs in the same calendar month as the
anticipated Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date" shall mean the Business Day
preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Mortgage
Loan and REO Mortgage Loan, the fee designated as such and payable to the Master
Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and any successor REO Mortgage Loan, the rate per annum specified
with respect to such Mortgage Loan under the heading "Servicing and Trustee
Fees" in the Mortgage Loan Schedule, minus the Trustee Fee Rate.
"Material Breach" shall mean: (a) with respect to any Mortgage
Loan, any Breach that materially and adversely affects the value of, or the
interests of any Certificateholder in, such Mortgage Loan or the value of the
related Mortgaged Property; and (b) with respect to any REO Property, any Breach
that materially and adversely affects the value of, or the interests of any
Certificateholder in, such REO Property.
"Material Document Defect" shall mean: (a) with respect to any
Mortgage Loan, any Document Defect that materially and adversely affects the
value of, or the interests of any Certificateholder in, such Mortgage Loan or
the value of the related Mortgaged Property; and (b) with respect to any REO
Property, any Document Defect that materially and adversely affects the value
of, or the interests of any Certificateholder in, such REO Property; provided
that, without limiting the generality of the foregoing, the absence of a
Specially Designated Mortgage Loan Document shall automatically be a Material
Document Defect with respect to the affected Mortgage Loan.
"Midland" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Modified Mortgage Loan" shall mean any Mortgage Loan as to which
any Servicing Transfer Event has occurred and which has been modified by the
Special Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to,
bringing Monthly Payments current with respect to such Mortgage Loan
and/or extending the maturity date for the Mortgage Loan for less than
six months);
(b) except as expressly contemplated by the related loan
documents, results in a release of the lien of the Mortgage on any
material portion of the related Mortgaged Property without a
corresponding Principal Prepayment in an amount, or the delivery of
substitute real property collateral with a fair market value (as is),
that is not less than the fair market value (as is) of the property to be
released, as determined by an Appraisal delivered to the Special Servicer
(at the expense of the related Borrower and upon which the Special
Servicer may conclusively rely); or
(c) in the reasonable judgment of the Special Servicer, otherwise
materially impairs the security for such Mortgage Loan or materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Interest Distribution Amount" shall mean, with respect to
any Distribution Date and any Class of Regular Certificates other than the Class
A-X Certificates, the amount of interest accrued for the related Interest
Accrual Period at the related Pass-Through Rate on the Class Principal Balance
of such Class as of such Distribution Date, reduced by such Class's pro rata
share (based on accrued interest) of the Net Aggregate Prepayment Interest
Shortfall. As to any Distribution Date and the Class A-X Certificates, the
amount of interest accrued during the related Interest Accrual Period at the
Pass-Through Rate thereof on the Class Notional Amount thereof as of such
Distribution Date, reduced by such Class's pro rata share (based on accrued
interest) of the Net Aggregate Prepayment Interest Shortfall for such
Distribution Date.
"Monthly Payment" shall mean, with respect to any Mortgage Loan as
of any Due Date, the scheduled monthly payment (or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum required monthly
payment) of principal and/or interest on such Mortgage Loan, including any
Balloon Payment, that is actually payable by the related Borrower 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, insolvency or similar proceeding
involving the related Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20); provided that the Monthly Payment due in respect of
any ARD Mortgage Loan after its Anticipated Repayment Date shall not include
Post-ARD Additional Interest.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its
successor in interest. If neither such rating agency 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 other parties
hereto, and specific ratings of Xxxxx'x Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage" shall mean, with respect to any Mortgage Loan,
separately and collectively, as the context may require, each mortgage, deed of
trust, deed to secure debt or similar document that secures the related Mortgage
Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan,
subject to Sections 1.04 and 2.01, the following documents on a collective
basis:
(i) the original Note (or a lost note affidavit and indemnity),
bearing, or accompanied by, all prior and intervening
endorsements or assignments showing a complete chain of
endorsement, assignment or allonge from the applicable
Mortgage Loan Originator either in blank or to the Mortgage
Loan Seller, and further endorsed (at the direction of the
Depositor given pursuant to the Mortgage Loan Purchase
Agreement) by the Mortgage Loan Seller, on its face or by
allonge attached thereto, without recourse, in blank or to
the order of the Trustee in the following form: "Pay to the
order of Xxxxx Fargo Bank, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-C3, without recourse,";
(ii) a duplicate original Mortgage or a counterpart thereof, or
if such Mortgage has been returned by the related recording
office, (A) an original, (B) a certified copy or (C) a copy
thereof from the applicable recording office, and originals
or counterparts (or originals or copies of certified copies
from the applicable recording office) of any intervening
assignments thereof from the related Mortgage Loan
Originator to the Mortgage Loan Seller, in each case in the
form submitted for recording or, if recorded, with evidence
of recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and
of any intervening assignments thereof that precede the
assignment referred to in clause (v) of this definition, in
each case (unless the particular item has not been returned
from the applicable recording office) with evidence of
recording indicated thereon or certified as to recording by
the applicable recording office;
(iv) an original executed assignment of the Mortgage, in blank
or in favor of Xxxxx Fargo, as trustee for the registered
holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates,
Series 2006-C3, in recordable form (except for any missing
recording information with respect to such Mortgage);
(v) an original executed assignment of any related Assignment
of Leases (if such item is a document separate from the
Mortgage), in blank or in favor of Xxxxx Fargo, as trustee
for the registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-C3, in recordable form (except
for any missing recording information with respect to such
Assignment of Leases);
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements
in those instances where the terms or provisions of the
Mortgage or Mortgage Note have been modified or the
Mortgage Loan has been assumed, in each case (unless the
particular item has not been returned from the applicable
recording office) with evidence of recording indicated
thereon or certified as to recording by the applicable
recording office if the instrument being modified or
assumed is a recordable document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title
insurance marked as binding and countersigned by the title
insurer or its authorized agent either on its face or by an
acknowledged closing instruction or escrow letter with the
original title insurance policy delivered by December 31,
2007;
(viii) certified or other copies of all UCC Financing Statements
and continuation statements which show the filing or
recording thereof or copies thereof in the form submitted
for filing or recording sufficient to perfect (and maintain
the perfection of) the security interest held by the
Mortgage Loan Originator (and each assignee of record prior
to the Trustee) in and to the personalty of the Borrower at
the Mortgaged Property that is described in the related
Mortgage or a separate security agreement, and original UCC
Financing Statement assignments in a form suitable for
filing or recording, sufficient to transfer such to the
Trustee;
(ix) an original or copy of any related Loan Agreement (if
separate from the related Mortgage) and an original or copy
of any related lock-box agreement or cash collateral
agreement (if separate from the related Mortgage and Loan
Agreement;
(x) the original or a copy of any power of attorney, guaranty,
or cash management agreement relating to such Mortgage
Loan;
(xi) any original documents (including any Letter(s) of Credit)
evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any amendments or
intervening assignments thereof, provided that in
connection with the delivery of the Mortgage File to the
Trust, the original of each Letter of Credit (and any
related amendment or assignment) shall be delivered to the
Master Servicer and a copy thereof shall be delivered to
the Trustee or a Custodian on its behalf;
(xii) the original or a copy of any security agreement relating
to Additional Collateral and an executed assignment thereof
in blank or in favor of Xxxxx Fargo, as trustee, for the
registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Pass-Through Certificates,
Series 2006-C3, in recordable form;
(xiii) the original or a copy of any intercreditor agreement
(including any A/B Intercreditor Agreement), co-lender
agreement or similar agreement relating to such Mortgage
Loan together with, if the Mortgage Loan is an A Loan, a
copy of the promissory note for the related B Loan;
(xiv) any environmental insurance policies and any environmental
guaranty or indemnity agreements or copies thereof;
(xv) the original Ground Lease, Ground Lease estoppels and any
amendments thereto, if any, or a copy thereof;
(xvi) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any
applicable transfer or assignment documents;
(xvii) any additional documents required to be added to the
Mortgage File pursuant to this Agreement; and
(xviii) the checklist of the related Mortgage Loan Documents, if
any, that is included in the Mortgage File for the related
Trust Mortgage Loan;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian or, if applicable, the Master
Servicer on its behalf such term shall be deemed not to include such documents
and instruments required to be included therein unless they are actually so
received; and provided, further, that the Mortgage File for any Mortgage Loan
need not include any Letter of Credit referred to in item (xi) of this
definition if, in lieu thereof, the related Mortgage Loan Seller has, on behalf
of the related Borrower, either (1) delivered to the Trustee a substitute letter
of credit, in the same amount and with the same draw conditions and renewal
rights as, and otherwise substantially similar to, that Letter of Credit and
issued by an obligor that meets any criteria in the related Mortgage Loan
Documents applicable to the issuer of that Letter of Credit or (2) delivered to
the Master Servicer a cash reserve in an amount equal to the amount of that
Letter of Credit (the "LOC Cash Reserve"), which substitute letter of credit can
be drawn on, or which cash reserve can be applied, to cover the same items as
that Letter of Credit was intended to cover. If any B Loan is being serviced and
administered in accordance herewith, the Mortgage File for the related A Loan
shall also constitute the Mortgage File for such B Loan.
"Mortgage Loan" shall mean each of the Original Mortgage Loans and
Replacement Mortgage Loans that are from time to time held in the Trust Fund,
including any such Original Mortgage Loan or Replacement Mortgage Loan that has
been wholly or partially defeased. As used herein, the term "Mortgage Loan"
includes the related Mortgage Loan Documents.
"Mortgage Loan Documents" shall mean, with respect to any Mortgage
Loan, the documents included or required to be included, as the context may
require, in the related Mortgage File and Servicing File.
"Mortgage Loan Purchase Agreement" shall mean any of the Column
Mortgage Loan Purchase Agreement and the PNC Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the two
schedules of Mortgage Loans attached hereto as Exhibit B-1A and Exhibit B-1B,
respectively, as any such schedule may be amended from time to time in
accordance with this Agreement, collectively, which list sets forth the
following information with respect to each Mortgage Loan:
(i) the loan number (as specified in Exhibit A-1 to the
Prospectus Supplement);
(ii) the property name;
(iii) the street address (including city, state and zip
code) of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at the Cut-off Date;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) remaining term to stated maturity, (b)
Maturity Date and (c) with respect to each ARD Mortgage Loan, the
Anticipated Repayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the number of units, pads, rooms or square footage
with respect to the Mortgaged Property;
(xii) the Interest Accrual Period;
(xiii) the applicable Primary Servicing Fee Rate and the
Master Servicing Fee Rate;
(xiv) the Due Date;
(xv) whether such loan is an ARD Mortgage Loan;
(xvi) whether the Mortgage Loan is subject to
lockout/defeasance;
(xvii) whether the related Mortgaged Property was covered
by earthquake insurance at the time of origination, or if the loan
documents require such insurance;
(xviii) whether such Mortgage Loan has the benefit of an
Environmental Insurance Policy;
(xix) whether such Mortgage Loan is secured by the related
Borrower's interest in Ground Leases;
(xx) whether such Mortgage Loan is secured by a Letter of
Credit; and
(xxi) which Loan Group includes such Mortgage Loan.
Such Mortgage Loan Schedule also shall set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller" shall mean the Column Mortgage Loan Seller
or the PNC Mortgage Loan Seller.
"Mortgage Note" shall mean the original executed note evidencing
the indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively, as of any particular date of
determination.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan (and
any successor REO Mortgage Loan), the annualized rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by the Master Servicer or the
Special Servicer in accordance with Section 3.20. In the case of each of the ARD
Mortgage Loans, the related Mortgage Rate will be subject to increase in
accordance with the related Mortgage Note if the particular Mortgage Loan is not
paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and collectively, as
the context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if
and when the context may require, "Mortgaged Property" shall mean, collectively,
all the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee" shall mean the holder of legal title to any Mortgage
Loan, together with any third parties through which such holder takes actions
with respect to such Mortgage Loan.
"Net Aggregate Prepayment Interest Shortfall" shall mean, 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 amount of any Compensating Interest Payment remitted by
the Master Servicer pursuant to Section 3.19(a) on the Master Servicer
Remittance Date related to such Distribution Date.
"Net Assumption Application Fee" shall have the meaning assigned
thereto in Section 3.08.
"Net Assumption Fee" shall have the meaning assigned thereto in
Section 3.08.
"Net Default Charges" shall mean, with respect to any Mortgage
Loan or REO Mortgage Loan, the Default Charges referred to in clause Fifth of
Section 3.26(a), which are payable to the Master Servicer as Additional Master
Servicing Compensation or the Special Servicer as Additional Special Servicing
Compensation.
"Net Investment Earnings" shall mean, with respect to any
Investment Account for any Collection Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Collection
Period in connection with the investment of funds held in such Investment
Account for the benefit of the Master Servicer, the Special Servicer or the
Trustee, as applicable, in accordance with Section 3.06, exceeds the aggregate
of all losses, if any, incurred during such Collection Period in connection with
the investment of such funds for the benefit of such Master Servicer, such
Special Servicer or the Trustee, as applicable, in accordance with Section 3.06
(other than losses of what would otherwise have constituted interest or other
income earned on such funds).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account for the benefit of the
Master Servicer, the Special Servicer or the Trustee, as applicable, in
accordance with Section 3.06 (other than losses of what would otherwise have
constituted interest or other income earned on such funds), exceeds the
aggregate of all interest and other income realized during such Collection
Period in connection with the investment of such funds for the benefit of such
Master Servicer, such Special Servicer or the Trustee, as applicable, in
accordance with Section 3.06; provided that, in the case of any Investment
Account and any particular investment of funds in such Investment Account, Net
Investment Loss shall not include any loss with respect to such investment which
is incurred solely as a result of the insolvency of the federal or state
chartered depositary institution or trust company that holds such Investment
Account, so long as such depositary institution or trust company (i) satisfied
the qualifications set forth in the definition of Eligible Account both at the
time such investment was made and also as of a date not more than 30 days prior
to the date of such loss and (ii) was not such Master Servicer, such Special
Servicer, such Trustee or any Affiliate thereof, as applicable.
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds actually received by the Trust with respect to any
Specially Serviced Mortgage Loan or REO Property, over the amount of all
Liquidation Expenses incurred with respect thereto and all related Servicing
Advances reimbursable therefrom.
"Net Mortgage Pass-Through Rate" shall mean:
(A) With respect to any Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) that accrues interest on a 30/360 Basis, for
any Distribution Date, an annual rate equal to the original Net Mortgage Rate
for such Mortgage Loan; and
(B) With respect to any Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) that accrues interest on an Actual/360
Basis, for any Distribution Date, an annual rate generally equal to twelve times
a fraction, expressed as a percentage:
(1) 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 related Interest Accrual Period (disregarding the last
sentence of the definition of Interest Accrual Period),
multiplied by (b) the Stated Principal Balance of such
Mortgage Loan (or such REO Mortgage Loan) immediately
preceding such Distribution Date, multiplied by (c) 1/360,
multiplied by (d) the Original Net Mortgage Rate for such
Mortgage Loan; and
(2) the denominator of which is the Stated Principal Balance of
such Mortgage Loan (or such REO Mortgage Loan) immediately
preceding that 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 (unless the Final Distribution Date occurs in such month),
then the amount of interest referred to in the fractional numerator described in
clause (B)(1) above will be decreased to reflect any Withheld Amounts 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 (or February, if the Final Distribution Date occurs in such
month), then the amount of interest referred to in the fractional numerator
described in clause (B)(1) above will be increased to reflect any Withheld
Amounts 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.
"Net Mortgage Rate" shall mean, with respect to any Mortgage Loan
(or successor REO Mortgage Loan), the rate per annum equal to (a) the related
Mortgage Rate minus (b) (i) the related Administrative Fee Rate and (ii) in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date, the related
Post-ARD Additional Interest Rate.
"New Lease" shall mean any lease of an REO Property entered into
at the direction of the Special Servicer on behalf of the Trust, including any
lease renewed, modified or extended on behalf of the Certificateholders, if the
Special Servicer has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean the portion of any P&I
Advance previously made or proposed to be made in respect of a Mortgage Loan or
an REO Mortgage Loan (including any P&I Advance that constitutes a
Workout-Delayed Reimbursement Amount) which, in the judgment (in accordance with
the Servicing Standard in the case of judgment by the Master Servicer or the
Special Servicer) of the Master Servicer, the Special Servicer or the Trustee,
as applicable, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon, from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Mortgage Loan. Nonrecoverable P&I Advance
shall also include any Workout-Delayed Reimbursement Amounts when the Person
making such determination in accordance with the procedures specified herein for
Nonrecoverable Servicing Advances or Nonrecoverable P&I Advances, as applicable,
and taking into account factors such as all other outstanding Advances, either
(a) has determined that such Workout-Delayed Reimbursement Amounts, would not
ultimately be recoverable from late payments or any other recovery on or in
respect of the related Mortgage Loan or REO Loans or (b) has determined that
such Workout-Delayed Reimbursement Amounts would not ultimately be recoverable,
along with any other Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances, out of the principal portion of future collections on all of the
Mortgage Loans and REO Properties, from general principal collections in the
Collections Account. The determination by the Master Servicer, the Special
Servicer or the Trustee, as applicable, that it has made (or, in the case of a
determination made by the Special Servicer, that the Master Servicer or Trustee
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 (i) to the Trustee and the Special Servicer, in
the case of the Master Servicer, (ii) to the Master Servicer and the Trustee in
the case of the Special Servicer, (iii) to the Depositor, the Master Servicer
and the Special Servicer, in the case of the Trustee, and (iv) in each case, to
the Series 2006-C3 Controlling Class Representative, each B Loan Holder or its
designee (if any A/B Loan Pair or any related REO Mortgage Loan is involved) and
to any Requesting Subordinate Certificateholder (at the expense of such
Requesting Subordinate Certificateholder) setting forth such determination of
nonrecoverability and the considerations of the Master Servicer, the Special
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall include but shall not be limited to information, to the extent
available, such as related income and expense statements, rent rolls, occupancy
status, property inspections, and shall include an Appraisal (provided that if
an Appraisal has been obtained within the past 12 months, no new Appraisal is
required) of the related Mortgaged Property, the cost of which Appraisal shall,
subject to Section 3.03(c), be advanced by the Master Servicer as a Servicing
Advance). Such Officer's Certificate shall be accompanied by the Appraisal and
all other supporting documentation relevant to the subject parties'
nonrecoverability determination. The Trustee shall be entitled to conclusively
rely on the Master Servicer's determination that a P&I Advance is
nonrecoverable. The Master Servicer and the Trustee shall conclusively rely on
the Special Servicer's determination that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance" shall mean the portion of any
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property (including any Servicing Advance that constitutes
a Workout-Delayed Reimbursement Amount) which, in the judgment (in accordance
with the Servicing Standard in the case of judgment by the Master Servicer or
the Special Servicer) of the Master Servicer, the Special Servicer or the
Trustee, as the case may be, will not be ultimately recoverable, together with
any accrued and unpaid interest thereon, from Late Collections or any other
recovery on or in respect of such Mortgage Loan or REO Property. Nonrecoverable
Servicing Advance shall also include any Workout-Delayed Reimbursement Amounts
when the Person making such determination in accordance with the procedures
specified for Nonrecoverable Servicing Advances or Nonrecoverable P&I Advances,
as applicable, and taking into account factors such as all other outstanding
Advances, either (a) has determined that such Workout-Delayed Reimbursement
Amounts, would not ultimately be recoverable from late payments or any other
recovery on or in respect of the related Mortgage Loan or REO Loans or (b) has
determined that such Workout-Delayed Reimbursement Amounts would not ultimately
be recoverable, along with any other Workout-Delayed Reimbursement Amounts and
Nonrecoverable Advances, out of the principal portion of future collections on
all of the Mortgage Loans and REO Properties, from general principal collections
in the Collection Account. The determination by the Master Servicer, the Special
Servicer or the Trustee, as the case may be, that it has made (or, in the case
of a determination made by the Special Servicer, that the Master Servicer, the
Special Servicer or the Trustee has made) a Nonrecoverable Servicing Advance or
that any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officer's Certificate delivered (i)
to the Trustee and the Special Servicer, in the case of the Master Servicer,
(ii) to the Master Servicer and the Trustee in the case of the Special Servicer,
(iii) to the Depositor, the Special Servicer and the Master Servicer, in the
case of the Trustee, and (iv) and in each case, to the Series 2006-C3
Controlling Class Representative, to each B Loan Holder or its designee (if any
A/B Loan Pair or any related REO Property is involved) and to any Requesting
Subordinate Certificateholder (at the expense of such Requesting Subordinate
Certificateholder). The Officer's Certificate shall set forth such determination
of nonrecoverability and the considerations of the Master Servicer, the Special
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall include but shall not be limited to information, to the extent
available, such as related income and expense statements, rent rolls, occupancy
status and property inspections, and shall include an Appraisal (provided that
if an Appraisal has been obtained within the past 12 months, no new Appraisal is
required) of the related Mortgaged Property, the cost of which Appraisal shall,
subject to Section 3.03(c), be advanced by the Master Servicer as a Servicing
Advance). Such Officer's Certificate shall be accompanied by the Appraisal and
all other supporting documentation relevant to the subject parties'
nonrecoverability determination. The Trustee will be entitled to conclusively
rely on the Master Servicer's determination that a Servicing Advance is
nonrecoverable. The Master Servicer and the Trustee shall conclusively rely on
the Special Servicer's determination that a Servicing Advance is a
Nonrecoverable Servicing Advance.
"Non-Registered Certificate" shall mean any Certificate that has
not been subject to registration under the Securities Act. As of the Closing
Date, the Class A-X, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class Q, Class V, Class R and Class LR
Certificates will constitute Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Note" shall mean the original executed note (or, if applicable,
multiple notes collectively) evidencing the indebtedness of a Borrower under a
Mortgage Loan, together with any rider, addendum or amendment thereto.
"NRSRO" shall mean a nationally recognized statistical rating
organization as the term is used in federal securities laws.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer or a
Responsible Officer of the Trustee, as the case may be.
"Opinion of Counsel" shall mean a written opinion of counsel
(which counsel, in the case of any such opinion relating to the taxation of the
Trust Fund or any portion thereof or the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC or the status of the Grantor Trust as a grantor
trust for federal income tax purposes, shall be Independent of the Depositor,
each Mortgage Loan Seller, the Master Servicer, the Special Servicer and the
Trustee, but which may act as counsel to such Person) acceptable to and
delivered to the addressee(s) thereof and which Opinion of Counsel, except as
provided herein, shall not be at the expense of the Trustee.
"Optimal Interest Distribution Amount" shall mean, as to any
Distribution Date and any Class of Regular Certificates, the sum of the Monthly
Interest Distribution Amount and the Interest Shortfall Amount for such Class
for such Distribution Date.
"Original Certificate Balance" shall mean, with respect to any
Class of Regular Certificates (other than the Class A-X Certificates), the
initial aggregate principal amount thereof as of the Closing Date, in each case
as specified in the Preliminary Statement.
"Original Class Notional Amount" shall mean, with respect to the
Class A-X Certificates, the initial class notional amount thereof as of the
Closing Date, in each case as specified in the Preliminary Statement.
"Original Column Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original Lower-Tier Principal Amount" shall mean, with respect to
any Class of Uncertificated Lower-Tier Interests, the principal amount thereof
as of the Closing Date, in each case as specified in the Preliminary Statement
hereto.
"Original Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Original PNC Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, in the case of 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" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, any advance made by the Master Servicer or the Trustee pursuant
to Section 4.03.
"Pass-Through Rate" shall mean, with respect to each Class of
Certificates, the respective per annum rate listed below:
Class A-1: Class A-1 Pass-Through Rate
Class A-2: Class A-2 Pass-Through Rate
Class A-AB: Class A-AB Pass-Through Rate
Class A-3: Class A-3 Pass-Through Rate
Class A-1-A: Class A-1-A Pass-Through Rate
Class A-X: Class A-X Pass-Through Rate
Class A-M: Class A-M Pass-Through Rate
Class A-J: Class A-J Pass-Through Rate
Class B: Class B Pass-Through Rate
Class C: Class C Pass-Through Rate
Class D: Class D Pass-Through Rate
Class E: Class E Pass-Through Rate
Class F: Class F Pass-Through Rate
Class G: Class G Pass-Through Rate
Class H: Class H Pass-Through Rate
Class J: Class J Pass-Through Rate
Class K: Class K Pass-Through Rate
Class L: Class L Pass-Through Rate
Class M: Class M Pass-Through Rate
Class N: Class N Pass-Through Rate
Class O: Class O Pass-Through Rate
Class P: Class P Pass-Through Rate
Class Q: Class Q Pass-Through Rate
"PCAOB" shall mean the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean (a) 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 Class Principal Balance or Class Notional Amount, as the case may
be, of the relevant Class as of the Closing Date; and (b) with respect to a
Class V, Class R or Class LR Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performance Certification" shall have the meaning set forth in
Section 12.08.
"Performing Mortgage Loan" shall mean, as of any date of
determination, any Mortgage Loan as to which no Servicing Transfer Event then
exists.
"Performing Party" shall have the meaning assigned thereto in
Section 12.14.
"Permitted Investments" shall mean any one or more of the
following obligations or securities, regardless whether issued by the Depositor,
the Master Servicer, the Special Servicer or the Trustee or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition:
(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United
States of America, FNMA, FHLMC or any agency or instrumentality of
the United States of America; provided that such obligations have
a remaining term to maturity of one year or less from the date of
acquisition and which are backed by the full faith and credit of
the United States of America; provided, further, that any
obligation of, or guarantee by, FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be a
Permitted Investment only if such investment would not result in
the downgrading, withdrawal or qualification of the then-current
rating assigned by each Rating Agency to any Certificate as
confirmed in writing;
(ii) time deposits, unsecured certificates of deposit or
bankers' acceptances that mature in one year or less after the
date of issuance and are issued or held by any depository
institution or trust company incorporated or organized under the
laws of the United States of America or any State thereof and
subject to supervision and examination by federal or state banking
authorities, so long as the commercial paper or other short-term
debt obligations of such depository institution or trust company
are rated in the highest short-term debt rating category of each
Rating Agency or such other ratings as will not result in the
downgrading, withdrawal or qualification of the then-current
rating assigned by each Rating Agency to any Certificate, as
confirmed in writing by such Rating Agency;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has
a remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii)
above;
(iv) debt obligations maturing in one year or less from the
date of acquisition bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United
States of America or any state thereof, which securities have (A)
ratings in the highest long-term unsecured debt rating category of
each Rating Agency or (B) such other ratings (as confirmed by the
applicable Rating Agency in writing) as will not result in a
downgrade, qualification or withdrawal of the then-current rating
of the Certificates that are currently being rated by such Rating
Agency; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the
extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held
in the accounts established hereunder to exceed 10% of the sum of
the aggregate principal balance and the aggregate principal amount
of all Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) payable on
demand or on a specified date maturing in one year or less after
the date of issuance thereof and which is rated in the highest
short-term unsecured debt rating category of each Rating Agency;
(vi) units of investment funds that maintain a constant net
asset value and money market funds having the highest rating from
each Rating Agency for money market funds; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being
rated by such Rating Agency;
provided that such instrument or security qualifies as a "cashflow investment"
pursuant to Section 860G(a)(6) of the Code; and provided, further, that in each
case, if the instrument or security is rated by S&P, (a) it shall not have an
"r" highlighter affixed to its rating from S&P, (b) it shall have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change and (c) any such investment that provides for a variable rate of interest
must have an interest rate that is tied to a single interest rate index plus a
fixed spread, if any, and move proportionately with such index.
"Permitted Transferee" shall mean any Transferee of a Class R or
Class LR Certificate other than a Disqualified Organization, a Non-United States
Tax Person or a foreign permanent establishment or fixed base (each within the
meaning of the applicable income tax treaty) of a United States Tax Person;
provided, however, that if a Transferee is classified as a partnership under the
Code, such Transferee shall only be a Permitted Transferee if all of its direct
or indirect (except through a U.S. corporation) beneficial owners are United
States Tax Persons and the governing documents of the Transferee prohibit a
transfer of any interest in the Transferee to any Non-United States Tax Person.
"Person" shall mean 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.
"Phase I Environmental Assessment" shall mean a "Phase I
assessment" as described in and meeting the criteria of the American Society for
Testing and Materials, Designation E-1527.
"Plan" shall mean any of those retirement plans and other employee
benefit plans, 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 are subject to Title I of ERISA, Section 4975 of the Code or
Similar Law.
"Plurality Class LR Certificateholder" shall mean, as to any
taxable year of the Lower-Tier REMIC, the Holder of Certificates evidencing the
largest Percentage Interest in the Class LR Certificates.
"Plurality Class R Certificateholder" shall mean, as to any
taxable year of the Upper-Tier REMIC, the Holder of Certificates evidencing the
largest Percentage Interest in the Class R Certificates.
"PNC" shall mean PNC Bank, National Association.
"PNC Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"PNC Mortgage Loan Seller" shall mean PNC Bank, National
Association, a national banking association and its successors in interest.
"PNCCM" shall mean PNC Capital Markets LLC.
"Post-ARD Additional Interest" shall mean, 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 Post-ARD Additional Interest
Rate (the payment of which interest shall, under the terms of such Mortgage
Loan, be deferred until the principal balance of such Mortgage Loan has been
paid in full), together with all interest, if any, accrued at the related
Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Distribution Account" shall mean the
trust account, accounts or subaccount created and maintained by the Trustee,
which may be a subaccount of the Distribution Account, pursuant to Section
3.04(b), which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust
for Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2006-C3, Post-ARD Additional Interest
Distribution Account" and which shall be an Eligible Account. The Post-ARD
Additional Interest Distribution Account shall be an asset of the Grantor Trust
and not an asset of the Lower-Tier REMIC or the Upper-Tier REMIC.
"Post-ARD Additional Interest Rate" shall mean, with respect to
any ARD Mortgage Loan after its Anticipated Repayment Date, the incremental
increase in the Mortgage Rate for such Mortgage Loan resulting from the passage
of such Anticipated Repayment Date.
"Prepayment Assumption" shall mean, for purposes of determining
the accrual of original issue discount, market discount and premium, if any, on
the Mortgage Loans and the Certificates for federal income tax purposes, the
assumptions that each ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Mortgage Loan is otherwise voluntarily
prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part, or
any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received, made after the Due Date for such Mortgage Loan
in any Collection Period, any payment of interest (net of related Master
Servicing Fees and, further, net of any portion of such interest that represents
Default Interest or Post-ARD Additional Interest) actually collected from the
related Borrower or out of such Insurance Proceeds or Condemnation Proceeds, as
the case may be, and intended to cover the period from and after such Due Date
to, but not including, the date of prepayment (exclusive, however, of any
related Prepayment Premium or Yield Maintenance Charge that may have been
collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part, or
any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received, made prior to the Due Date for such Mortgage
Loan in any Collection Period, the amount of interest, to the extent not
collected from the related Borrower or out of such Insurance Proceeds or
Condemnation Proceeds, as the case may be (without regard to any Prepayment
Premium or Yield Maintenance Charge that may have been collected), that would
have accrued on the amount of such Principal Prepayment or other early
collection of Insurance Proceeds or Condemnation Proceeds during the period from
the date of prepayment to, but not including, such Due Date (less the amount of
related Master Servicing Fees and, if applicable, exclusive of Default Interest
and Post-ARD Additional Interest).
"Prepayment Premium" shall mean, with respect to any Mortgage
Loan, any premium, fee or other additional amount paid or payable, as the
context requires, by a Borrower in connection with a Principal Prepayment on, or
other early collection of principal of, a Mortgage Loan or any successor REO
Mortgage Loan, to the extent such premium, fee or other additional amount is
calculated as a percentage of the principal amount being prepaid or as a
specified amount (other than a Yield Maintenance Minimum Amount).
"Primary Servicing Office" shall mean the office of the Master
Servicer or the Special Servicer, as the context may require, that is primarily
responsible for such party's servicing obligations hereunder.
"Prime Rate" shall mean 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 Trustee, in its sole discretion, 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 Trustee shall select a comparable interest
rate index. In either case, such selection shall be made by the Trustee in its
sole discretion and the Trustee shall notify the Master Servicer and the Special
Servicer in writing of its selection.
"Principal Balance Certificates" shall mean, collectively, the
Class A-P&I Certificates and the Subordinate Principal Balance Certificates.
"Principal Distribution Adjustment Amount" shall mean, as to any
Distribution Date, the sum of (i) the amount of any Nonrecoverable Advance that
was reimbursed to the Master Servicer, Special Servicer or Trustee and that was
deemed to have been reimbursed out of the Principal Distribution Amount, in each
case, with interest on such Advance, during the period since the preceding
Distribution Date, (ii) any Workout-Delayed Reimbursement Amount that was
reimbursed to the Master Servicer, Special Servicer or Trustee and that was
deemed to have been reimbursed out of the Principal Distribution Amount, in each
case, with interest on such Advance, during the period since the preceding
Distribution Date and (iii) if any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds were received with respect to any Mortgage Loan or REO
Property, and/or any Mortgage Loan or REO Property is otherwise liquidated
(including by means of a Final Recovery Determination or the receipt of full,
partial, or discounted payoff), during the related Collection Period, an amount
equal to any Workout Fees and/or Liquidation Fees payable in connection
therewith
"Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the Final
Distribution Date, an amount equal to the aggregate (without duplication)
of the following--
(i) all payments of principal (including Principal Prepayments)
received by or on behalf of the Trust with respect to the
Mortgage Loans during the related Collection Period, in
each case net of any portion of the particular payment that
represents a Late Collection of principal for which a P&I
Advance was previously made for a prior Distribution Date
or that represents the principal portion of a Monthly
Payment due on or before the related Due Date in June 2006
or on a Due Date subsequent to the end of the related
Collection Period,
(ii) all scheduled payments of principal due in respect of the
Mortgage Loans for their respective Due Dates occurring
during the related Collection Period that were received by
or on behalf of the Trust (other than as part of a
Principal Prepayment) prior to the related Collection
Period,
(iii) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and proceeds of any purchase or repurchase of a
Mortgage Loan pursuant to this Agreement or any A/B
Intercreditor Agreement, received by or on behalf of the
Trust with respect to any of the Mortgage Loans during the
related Collection Period that were identified and applied
as recoveries of principal of such Mortgage Loans in
accordance with Section 1.03, in each case net of any
portion of such proceeds that represents a Late Collection
of principal due on or before the related Due Date in June
2006 or for which a P&I Advance was previously made for a
prior Distribution Date,
(iv) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and REO Revenues received by or on behalf of the
Trust in respect of any REO Properties during the related
Collection Period that were identified and applied as
recoveries of principal of the related REO Mortgage Loans
in accordance with Section 1.03, in each case net of any
portion of such proceeds and/or revenues that represents a
Late Collection of principal due on or before the related
Due Date in June 2006 or for which a P&I Advance was
previously made for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances made
in respect of the Mortgage Loans and any REO Mortgage Loans
with respect to such Distribution Date; and
with respect to the Final Distribution Date, an amount equal to the aggregate
Stated Principal Balance of the entire Mortgage Pool outstanding immediately
prior to the Final Distribution Date.
Notwithstanding the foregoing, (i) the Principal Distribution
Amount will be reduced for any Loan Group as to which funds were used
therefrom to reimburse Nonrecoverable Advances or Workout-Delayed
Reimbursement Amounts (as described in Section 1.05) on any Distribution
Date by an amount equal to the Principal Distribution Adjustment Amount
calculated with respect to such Distribution Date and (ii) the Principal
Distribution Amount will be increased for any Loan Group as to which
funds were used therefrom to reimburse Nonrecoverable Advances or
Workout-Delayed Reimbursement Amounts on any Distribution Date by the
amount of any recovery occurring during the related Collection Period of
an amount that was previously advanced with respect to a Mortgage Loan if
such Nonrecoverable Advance or any Workout-Delayed Reimbursement Amount
was previously reimbursed from Principal Distribution Amounts from such
Loan Group in a manner that resulted in a Principal Distribution
Adjustment Amount for such Loan Group on a prior Distribution Date.
"Principal Prepayment" shall mean any voluntary payment of
principal made by the Borrower on a Mortgage Loan that is received in advance of
its scheduled Due Date and that is not accompanied by an amount of interest
(without regard to any Prepayment Premium, Yield Maintenance Charge and/or
Post-ARD Additional Interest that may have been collected) representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Private Certificate" shall mean any Class A-X, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q
or Class V Certificate.
"Privileged Persons" shall mean the Depositor and any designee
thereof, the Master Servicer, the Special Servicer, the Underwriters, the Rating
Agencies, the Controlling Class Representative, each Certificateholder, each
Mortgage Loan Seller, to the extent that the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, each Certificate Owner and any prospective transferee provided such
party provides the Trustee with a certification substantially in the form of
Exhibit K-2 hereto.
"Prohibited Party" shall mean any party that (i) is listed on the
Depositor's Do Not Hire List or (ii) is a proposed Servicing Function
Participant for which the Master Servicer, Special Servicer or Trustee that
seeks to retain such Servicing Function Participant has actual knowledge that
such party at any point prior to such hiring, assignment or transfer failed to
comply in all material respects with the Servicing Function Participant's
obligations under Regulation AB with respect to any other securitization.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a).
"Prospectus" shall mean the Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement" shall mean that certain prospectus
supplement dated June 21, 2006, relating to the Registered Certificates, that is
a supplement to the Base Prospectus.
"PTCE" shall mean Prohibited Transaction Class Exemption.
"PTE" shall mean Prohibited Transaction Exemption.
"Public Certificate" shall mean any Class A-1, Class A-2, Class
A-AB, Class A-3, Class A-1-A, Class A-M, Class A-J, Class B, Class C, Class D or
Class E Certificate.
"Purchase Price" shall mean, with respect to any Mortgage Loan (or
REO Property), a cash price equal to the aggregate of (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 (exclusive of
any portion of such interest that represents Post-ARD Additional Interest) to,
but not including, the Due Date occurring in the Collection Period during which
the applicable purchase or repurchase occurs, (c) all related unreimbursed
Servicing Advances (or such Servicing Advance reimbursed by the Trust Fund from
general collections on the Mortgage Pool), (d) all accrued and unpaid Advance
Interest with respect to any related Advances (including any Advance Interest
reimbursed from general collections on the Mortgage Pool), and (e) solely in the
case of a repurchase or substitution by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement or by the Column Performance Guarantor
pursuant to the Column Performance Guarantee, (i) all related Special Servicing
Fees, Workout Fees (only if (x) such repurchase or substitution occurs after the
expiration of the applicable Initial Resolution Period and any applicable
Resolution Extension Period and (y) no Liquidation Fee is also payable in
connection with such repurchase or substitution by the Mortgage Loan Seller or
the Column Performance Guarantor, as applicable), Liquidation Fees (only if such
repurchase or substitution occurs after the expiration of the applicable Initial
Resolution Period and any applicable Resolution Extension Period), Advance
Interest (to the extent not otherwise included in the amount described in clause
(d) of this definition) and other related Additional Trust Fund Expenses (to the
extent not otherwise included in the amount described in clause (c) or clause
(d) of this definition), whether paid or then owing that have not been offset by
Default Charges related to such Mortgage Loan (or any successor REO Loan) or by
any Additional Master Servicing Compensation or Additional Special Servicer
Compensation related to such Mortgage Loan (or any successor REO Loan), and (ii)
to the extent not otherwise included in the amount described in clause (c),
clause (d) or clause (e)(i) of this definition, any costs and expenses incurred
by the Master Servicer, the Special Servicer or the Trustee (on behalf of the
Trust) in enforcing the obligation of such Person to repurchase or replace such
Mortgage Loan or REO Property.
With respect to any Defaulted Mortgage Loan to be purchased by the
Series 2006-C3 Controlling Class Representative (or any assignee thereof) or the
Special Servicer (or any Affiliate thereof) pursuant to Section 3.18(b) or
3.18(c) following determination of Fair Value, the Purchase Price will equal the
Fair Value of such Defaulted Mortgage Loan (which shall include a Liquidation
Fee if the purchase option has been assigned without consideration to an
unaffiliated third party and such third party is exercising the purchase
option). With respect to any REO Property to be sold pursuant to Section
3.18(e), the Purchase Price will equal the amount calculated in accordance with
the second preceding sentence in respect of the related REO Mortgage Loan (or,
if such REO Property relates to any A/B Loan Pair, in respect of all of the
related REO Mortgage Loans and treating the B Loans as if they were Mortgage
Loans).
"Purchase Price Security Deposit" shall have the meaning assigned
thereto in Section 2.03(b).
"Purchase Price Security Deposit Account" shall mean a segregated
custodial account or accounts created by and maintained by the Master Servicer,
pursuant to Section 2.03(b), on behalf of the Trustee in trust for the
Certificateholders and the related Mortgage Loan Seller, which shall be entitled
"Midland Loan Services, Inc., as the Master Servicer, in trust for the
registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2006-C3, and [name of the
related Mortgage Loan Seller], Purchase Price Security Deposit Account."
"Qualified Appraiser" shall mean, in connection with the appraisal
of any Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with at least five years of experience in respect of the relevant
geographic location and property type.
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer" shall mean (i) with respect to any Mortgage
Loan, Mortgaged Property or REO Property, an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction and that has a claims paying ability that is rated (or is
guaranteed or backed in writing by an entity with long-term unsecured debt that
is rated) at least "A" by S&P and "A2" by Xxxxx'x (if then rated by Xxxxx'x),
(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 claims paying ability that is rated (or is guaranteed or backed by an
entity with long-term unsecured debt that is rated) no lower than two ratings
(without regard to pluses and minuses (in the case of S&P) or numerical
designations (in the case of Xxxxx'x) below the rating assigned to the then
highest rated outstanding Certificate, but in no event lower than "A3" by
Xxxxx'x (if then rated by Xxxxx'x) and "A " by S&P or, in the case of clauses
(i) and (ii), such other rating as each 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 that are then currently
being rated by such Rating Agency.
"Qualifying Substitute Mortgage Loan" shall mean, in connection
with the replacement of a Defective Mortgage Loan as contemplated by Section
2.03, any other mortgage loan which, on the date of substitution, (i) has a
principal balance, after deduction of the principal portion of any unpaid
Monthly Payment due on or before the date of substitution, not in excess of the
Stated Principal Balance of the Defective Mortgage Loan; (ii) is accruing
interest at a fixed rate of interest at least equal to, and not more than one
percentage point in excess of, that of the Defective Mortgage Loan; (iii) has
the same Due Date as, and a grace period for delinquent Monthly Payments that is
no longer than, the Due Date and grace period, respectively, of the Defective
Mortgage Loan; (iv) is accruing interest on the same Interest Accrual Basis as
the Defective Mortgage Loan; (v) has a remaining term to stated maturity not
greater than, and not more than one year less than, that of the Defective
Mortgage Loan and, in any event, has a Stated Maturity Date not later than two
years prior to the Rated Final Distribution Date; (vi) has a then current
loan-to-value ratio not higher than, and a then current debt service coverage
ratio not lower than, the loan-to-value ratio and debt service coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Defective Mortgage Loan;
(viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase Agreement; (ix) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law; and (x) constitutes a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided, however, that if more
than one mortgage loan is to be substituted for any Defective Mortgage Loan,
then all such proposed Replacement Mortgage Loans shall, in the aggregate,
satisfy the requirement specified in clause (i) of this definition and each such
proposed Replacement Mortgage Loan shall, individually, satisfy each of the
requirements specified in clauses (ii) through (x) of this definition; and
provided, further, that no mortgage loan shall be substituted for a Defective
Mortgage Loan unless (x) such prospective Replacement Mortgage Loan shall be
acceptable to the Controlling Class Representative (or, if there is no such
Controlling Class Representative then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) absolute sole discretion, and (y) each Rating Agency
shall have confirmed in writing to the Trustee that such substitution will not
in and of itself result in an Adverse Rating Event with respect to any Class of
Rated Certificates (such written confirmation to be obtained by the party (i.e.,
the related Mortgage Loan Seller or the Column Performance Guarantor effecting
the substitution).
"Rated Certificate" shall mean any of the Certificates to which a
rating has been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date" shall mean June 2038.
"Rating Agency" shall mean either of Xxxxx'x and S&P.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to which a
Final Recovery Determination has been made, or with respect to any
successor REO Mortgage 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 or
REO Mortgage 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 unpaid interest accrued in respect of such
Mortgage Loan or REO Mortgage Loan, as the case may be, to but not
including the related Due Date in the Collection Period in which the
Final Recovery Determination was made, exclusive, however, of any portion
of such unpaid interest that constitutes Default Interest or, in the case
of an ARD Mortgage Loan after its Anticipated Repayment Date, Post-ARD
Additional Interest, all Special Servicing Fees, Workout Fees, Advance
Interest or other fees, expenses or items with respect to such Mortgage
Loan or REO Mortgage Loan that cause an Interest Shortfall to occur in
any prior Interest Accrual Period, minus (c) all payments and proceeds,
if any, received in respect of such Mortgage Loan or REO Mortgage Loan,
as the case may be, during the Collection Period in which such Final
Recovery Determination was made (net of any related Servicing Advances
reimbursed therefrom and any related Liquidation Expenses paid
therefrom);
(2) with respect to each defaulted Mortgage Loan as to which any
portion of the principal or past due interest payable thereunder was
canceled in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20, the amount of
such principal or past due interest (other than any Default Interest and,
in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Post-ARD Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for
any period in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20, the amount of
any consequent reduction in the interest portion of each successive
Monthly Payment due thereon (each such Realized Loss to be deemed to have
been incurred on the Due Date for each affected Monthly Payment).
"Record Date" shall mean, with respect to any Distribution Date,
the last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording Omission" shall mean, with respect to any Mortgage
Loan, any Material Document Defect that exists, as of any date coinciding with
or following December 31, 2007, as a result of the omission from the Mortgage
File for such Mortgage Loan of the original or a copy of any document referred
to in clause (ii), clause (iii), clause (iv), clause (v) or, in the case of a
Mortgaged Property operated as a hospitality property, clause (viii) of the
definition of "Mortgage File," with evidence of recording or filing thereon or a
receipt or other certification evidencing recording or filing, because such
document (i) was not delivered by or on behalf of the related Mortgage Loan
Seller either as a recorded or filed document or in proper form for recording or
filing in the appropriate recording or filing office or (ii) was returned
unrecorded or unfiled as a result of an actual or purported defect therein.
"Recording Omission Credit" shall mean, with respect to any
Mortgage Loan as to which there exists a Recording Omission as of December 31,
2007, a letter of credit in the amount of 25% of the then outstanding principal
amount of such Mortgage Loan and otherwise satisfying the criteria set forth in
the related Mortgage Loan Purchase Agreement.
"Recording Omission Reserve" shall mean, with respect to any
Mortgage Loan as to which there exists a Recording Omission as of December 31,
2007, a cash deposit in the amount of 25% of the then outstanding principal
amount of such Mortgage Loan.
"Registered Certificate" shall mean any Certificate that has been
subject to registration under the Securities Act. As of the Closing Date, the
Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates
constitute Registered Certificates.
"Regular Certificates" shall mean any Public Certificates or
Private Certificates.
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, a single temporary global
Certificate, in definitive, fully registered form without interest coupon, which
Certificate bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Reimbursement Rate" shall mean the rate per annum applicable to
the accrual of Advance Interest, which rate per annum is equal to the Prime
Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interest" and "Related Component" shall mean, for the following Classes of
Uncertificated Lower-Tier Interests and Components, the related Class of
Certificates set forth below; for the following Classes of Certificates, the
related Class or Classes of Uncertificated Lower-Tier Interests and Components
set forth below; and for the following Components, the related Class of
Certificates or Class of Uncertificated Lower-Tier Interests set forth below:
Related Uncertificated Related
Related Certificates Lower-Tier Interest Component
----------------------- ------------------------------------ ---------------
Class A-1 Certificate Class LA-1 Uncertificated Interest Component A-1
Class A-2 Certificate Class LA-2 Uncertificated Interest Component A-2
Class A-AB Certificate Class LA-AB Uncertificated Interest Component A-AB
Class A-3 Certificate Class LA-3 Uncertificated Interest Component A-3
Class A-1-A Certificate Class LA-1-A Uncertificated Interest Component A-1-A
Class A-M Certificate Class LA-M Uncertificated Interest Component A-M
Class A-J Certificate Class LA-J Uncertificated Interest Component A-J
Class B Certificate Class LB Uncertificated Interest Component B
Class C Certificate Class LC Uncertificated Interest Component C
Class D Certificate Class LD Uncertificated Interest Component D
Class E Certificate Class LE Uncertificated Interest Component E
Class F Certificate Class LF Uncertificated Interest Component F
Class G Certificate Class LG Uncertificated Interest Component G
Class H Certificate Class LH Uncertificated Interest Component H
Class J Certificate Class LJ Uncertificated Interest Component J
Class K Certificate Class LK Uncertificated Interest Component K
Class L Certificate Class LL Uncertificated Interest Component L
Class M Certificate Class LM Uncertificated Interest Component M
Class N Certificate Class LN Uncertificated Interest Component N
Class O Certificate Class LO Uncertificated Interest Component O
Class P Certificate Class LP Uncertificated Interest Component P
Class Q Certificate Class LQ Uncertificated Interest Component Q
"Release Date" shall mean, with respect to any Class of
Non-Registered Certificates (other than the Class R, Class LR and Class V
Certificates), the date that is 40 days following the later of (i) the
commencement of the offering of such Non-Registered Certificates to Persons
other than distributors in reliance upon Regulation S under the Securities Act
and (ii) the date of closing of such offering.
"Relevant Servicing Criteria" shall mean the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect to the Master
Servicer, the Special Servicer and the Trustee, on Exhibit U attached hereto).
For clarification purposes, multiple Reporting Servicers can have responsibility
for the same Relevant Servicing Criteria, and some of the Servicing Criteria
will not be applicable to certain Reporting Servicers. With respect to a
Servicing Function Participant engaged by the Trustee, the Master Servicer or
the Special Servicer, the term "Relevant Servicing Criteria" refers to the items
of the Relevant Servicing Criteria applicable to the Trustee, the Master
Servicer or the Special Servicer that engaged such Servicing Function
Participant that are applicable to such Servicing Function Participant based on
the functions it has been engaged to perform.
"Remaining Principal Distribution Amount" shall mean, as to any
Distribution Date and any Class of Subordinate Certificates, the amount, if any,
by which the Principal Distribution Amount for such Distribution Date exceeds
the aggregate amount distributed in respect of Principal Distribution Amounts on
such Distribution Date to all Classes senior to such Class.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Provisions" shall mean the 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" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean a segregated custodial account or
accounts created and maintained by the Special Servicer, pursuant to Section
3.16(b), on behalf of the Trustee in trust for the Certificateholders and the
related B Loan Holder in connection with an A/B Loan Pair, which shall be
entitled "Midland Loan Services, Inc. [or the name of any successor Special
Servicer], as Special Servicer, on behalf of Xxxxx Fargo Bank, N.A. [or the name
of any successor Trustee], in trust for the registered holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass Through
Certificates and the related B Loan Holder, Series 2006-C3, REO Account."
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for
purposes hereof to be outstanding with respect to each REO Property. Each REO
Mortgage Loan shall be deemed to provide for monthly payments of principal
and/or interest equal to its Assumed Monthly 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 or the Trust's acquisition of the subject REO Property). 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 Monthly Payments (other than any Balloon
Payment), Assumed Monthly 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 (including, without limitation, those
Nonrecoverable Advances and Workout Delayed Reimbursement Amounts and interest
thereon that were reimbursed from principal collections on the Mortgage Pool),
shall be deemed to continue to be due and owing in respect of an REO Mortgage
Loan. In addition, all amounts payable or reimbursable to the Master Servicer,
the Special Servicer or the Trustee in respect of the predecessor Mortgage Loan
as of the date of the related REO Acquisition, including any unpaid or
unreimbursed Servicing Fees and Advances (together with any related unpaid
Advance Interest), shall continue to be payable or reimbursable in the same
priority and manner pursuant to Section 3.05(a) to such Master Servicer, such
Special Servicer or the Trustee, as the case may be, in respect of an REO
Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired by or
otherwise on behalf of the Trust for the benefit of the Certificateholders and,
if such property relates to an A/B Loan Pair, the related B Loan Holder, 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 Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property. With
respect to an REO Property that had been security for an A Loan, the portion of
the amounts described above received with respect to such REO Property and
allocable to the related A Note pursuant to the related A/B Intercreditor
Agreement.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"Replacement Mortgage Loan" shall mean any mortgage loan that is
substituted by a Mortgage Loan Seller or the Column Performance Guarantor for a
Defective Mortgage Loan as contemplated by Section 2.03.
"Reportable Event" shall have the meaning assigned thereto in
Section 12.09.
"Reporting Servicer" shall mean the Master Servicer, the Special
Servicer, the Trustee and any Servicing Function Participant, as the case may
be.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Requesting Subordinate Certificateholder" shall mean the Holder
of any of the Class L, Class M, Class N, Class O, Class P or Class Q
Certificates, that delivers notice to the Trustee, the Master Servicer and the
Special Servicer indicating that such Holder is a "Requesting Subordinate
Certificateholder."
"Required Appraisal Loan" shall mean any Mortgage Loan (and any
successor REO Mortgage Loan) as to which an Appraisal Trigger Event has
occurred; provided that a Mortgage Loan shall cease to be a Required Appraisal
Loan if and when, following the occurrence of the most recent Appraisal Trigger
Event with respect thereto, such Mortgage Loan has become a Corrected Mortgage
Loan and no other Servicing Transfer Event or Appraisal Trigger Event has
occurred with respect thereto during the preceding three months.
"Reserve Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Borrower to be held in escrow by or on behalf
of the mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Residual Transfer Affidavit" shall have the meaning assigned
thereto in Section 5.02(d).
"Resolution Extension Period" shall have the meaning assigned
thereto in Section 2.03(b).
"Responsible Officer" shall mean (i) any officer of the Global
Securitization Trust Services Group of the Trustee (and, in the event that the
Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) and (ii) when used with respect to
the initial Trustee, any Vice President, Assistant Vice President, corporate
trust officer or assistant corporate trust officer of the Trustee having direct
responsibility for the administration of this Agreement, and with respect to any
successor Trustee, any officer or assistant officer in the corporate trust
department of the Trustee or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers to whom a particular matter is referred by the Trustee because of such
officer's knowledge of and familiarity with the particular subject.
"Restricted Servicer Reports" shall mean collectively, to the
extent not filed with the commission, each of the CMSA Servicer Watch List, the
CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet,
CMSA Financial File and the CMSA Comparative Financial Status Report.
"Rule 144A Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates, a single global Certificate
registered in the name of the Depository or its nominee, in definitive, fully
registered form without interest coupons, which Certificate bears a Qualified
Institutional Buyer CUSIP number and does not bear a Regulation S Legend.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" 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 other parties hereto, and specific ratings of Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of S&P,
be deemed to refer to such applicable rating category of S&P, without regard to
any plus or minus or other comparable rating qualification.
"Xxxxxxxx-Xxxxx Act" shall mean the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations of the Commission promulgated thereunder (including
any interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification" shall have the meaning set forth in
Section 12.08.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
"Security Agreement" shall mean, with respect to any Mortgage
Loan, any security agreement or equivalent instrument, whether contained in the
related Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Security Position Listing" shall mean a listing prepared by the
Depository of the holdings of Depository Participants with respect to the
Certificates.
"Senior Certificates" shall mean, collectively, the Class X-0,
Xxxxx X-0, Class A-AB, Class A-3 and Class A-X Certificates.
"Senior Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of which the aggregate of the Class Principal
Balances of the Class A-1, Class A-2, Class A-AB, Class A-3 and Class A-1-A
Certificates outstanding immediately prior thereto equals or exceeds the sum of
(a) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date, plus (b) the lesser of
(i) the Principal Distribution Amount for such Distribution Date and (ii) the
portion of the Available Distribution Amount for such Distribution Date that
will remain after all distributions of interest to be made on the Class A-X,
Class X-0, Xxxxx X-0, Class A-AB, Class A-3 and Class A-1-A Certificates on such
Distribution Date pursuant to Section 4.01(a) have been so made.
"Servicer" shall have the meaning set forth in Section 12.03.
"Service(s)(ing)" shall mean, in accordance with Regulation AB,
the act of servicing and administering the Mortgage Loans or any other assets of
the Trust by an entity that meets the definition of "servicer' set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securitization market.
"Servicing Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses, including reasonable attorneys'
fees and expenses, paid or to be paid, as the context requires, out of its own
funds, by the Master Servicer or the Special Servicer (or, if applicable, the
Trustee) in connection with the servicing of a Mortgage Loan as to which a
default, delinquency or other unanticipated event has occurred or is reasonably
foreseeable, or in connection with the administration of any REO Property,
including (1) any such costs and expenses associated with (a) compliance with
the obligations of the Master Servicer and/or the Special Servicer set forth in
Sections 2.03, 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, including the cost of any
"force placed" insurance policy purchased by the Master Servicer or the Special
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,
Condemnation Proceeds or Liquidation Proceeds in respect of any such Mortgage
Loan or any REO Property, (d) any enforcement or judicial proceedings with
respect to any such Mortgage Loan, including foreclosures and similar
proceedings, (e) the operation, leasing, management, maintenance and liquidation
of any REO Property, (f) obtaining any Appraisal required to be obtained
hereunder, and (g) UCC filings (to the extent that the costs thereof are not
reimbursed by the related Borrower), (2) the reasonable and direct out-of-pocket
travel expenses incurred by the Special Servicer in connection with performing
inspections pursuant to Section 3.12(a), and (3) any other expenditure which is
expressly designated as a Servicing Advance herein; provided that,
notwithstanding anything to the contrary, "Servicing Advances" shall not include
(A) 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,
(B) costs incurred by either such party or any Affiliate thereof in connection
with its purchase of any Mortgage Loan or REO Property pursuant to any provision
of this Agreement or (C) costs or expenses expressly required under this
Agreement to be borne by the Master Servicer or the Special Servicer.
"Servicing Criteria" shall mean the criteria set forth in
paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to
time.
"Servicing Fees" shall mean, with respect to any Mortgage Loan or
REO Mortgage Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean any documents (other than documents
required to be part of the related Mortgage File, but including copies of those
documents, the originals of any related Letter of Credit and any correspondence
file) in the possession or under the control of, or required (pursuant to the
applicable Mortgage Loan Purchase Agreement, this Agreement or otherwise) to be
delivered to, as the context may require, the Master Servicer or the Special
Servicer and relating to the origination and servicing of any Mortgage Loan or
the administration of any REO Property, including any tenant subordination and
non-disturbance agreements, third-party underwriting reports, legal opinions and
insurance policies relating to such Mortgage Loan or the related Mortgaged
Property that are in the possession of the Master Servicer or the Special
Servicer, as the case may be, at any particular time, but excluding any
documents and other writings that have been prepared by the related Mortgage
Loan Seller or any of its Affiliates solely for internal credit analysis or
other internal uses or any attorney-client privileged communication.
"Servicing Function Participant" shall mean any Person, other than
the Master Servicer, the Special Servicer and the Trustee, that is, within the
meaning of Item 1122 of Regulation AB, performing activities that address the
Servicing Criteria, unless such Person's activities relate only to 5% or less of
the Mortgage Loans (calculated by Stated Principal Balance).
"Servicing Officer" shall mean any officer or employee of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose 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 by such Master Servicer or such Special Servicer.
"Servicing Return Date" shall mean, with respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by the Special
Servicer to the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the
Master Servicer and the Special Servicer, to service and administer the Mortgage
Loans and REO Properties for which it is responsible hereunder: (a) with the
same care, skill, prudence and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder, giving due consideration to customary and usual standards
of practice of prudent institutional commercial mortgage loan servicers used
with respect to mortgage loans and REO properties comparable to those for which
it is responsible hereunder; (b) with a view to the timely collection of all
scheduled payments of principal and interest under the Mortgage Loans and any B
Loan, the full collection of all Prepayment Premiums and Yield Maintenance
Charges that may become payable under the Mortgage Loans and, in the case of the
Special Servicer, if a Mortgage Loan or any B Loan comes into and continues in
default and if, in the good faith and reasonable judgment of the Special
Servicer, no satisfactory arrangements can be made for the collection of the
delinquent payments (including payments of Prepayment Premiums and Yield
Maintenance Charges), the maximization of the recovery on such Mortgage Loan to
the Certificateholders (as a collective whole) (or in the case of any A/B Loan
Pair and its related B Loan, if any, the maximization of recovery on the A/B
Loan Pair to the Certificateholders and the B Loan Holder, as applicable, all
taken as a collective whole and taking into account the subordination of the B
Loan) on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be performed at
the related Net Mortgage Rate) as determined by the Special Servicer or Master
Servicer, as the case may be, in its reasonable judgment; and (c) without regard
to: (i) any relationship that the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, may have
with the related Borrower or with any other party to this Agreement; (ii) the
ownership of any Certificate by the Master Servicer (or any Affiliate thereof)
or the Special Servicer (or any Affiliate thereof), as the case may be; (iii)
the obligation of the Master Servicer to make Advances, (iv) the obligation of
the Special Servicer to make, or direct the Master Servicer to make, Servicing
Advances; (v) the right of the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; (vi) any obligation
that the Master Servicer or Special Servicer, as the case may be, or any of its
affiliates, may have to cure a Breach or a Document Defect or to repurchase or
replace a Defective Mortgage Loan; (vii) any ownership, servicing and/or
management by the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, of any other mortgage
loans or real property; or (viii) the ownership by the Master Servicer or
Special Servicer, as the case may be, or any of its Affiliates of any other debt
owed by, or secured by ownership interests in, any of the Borrowers or any
Affiliate of a Borrower.
"Servicing Transfer Event" shall mean, with respect to any
Mortgage Loan, any of the following events:
(a) the related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related Mortgage Loan Documents (including, in the case of an A/B
Loan Pair, any scheduled payment of principal or interest on any B Loan),
which failure continues, or the Master Servicer determines, in its
reasonable judgment, will continue, unremedied for the following time
periods--(i) except in the case of a delinquent Balloon Payment, for 60
days beyond the date on which the subject payment was due and (ii) solely
in the case of a delinquent Balloon Payment, for 90 days beyond the
related maturity date or, if the related Borrower has delivered to the
Master Servicer a refinancing commitment reasonably acceptable to the
Special Servicer and continues to pay the Assumed Monthly Payment, for
such longer period, not to exceed 150 days beyond the related maturity
date, during which the refinancing would occur; or
(b) the Master Servicer has determined, in its reasonable
judgment, that a default in making a Monthly Payment (including a Balloon
Payment) or any other material payment required under the related
Mortgage Loan Documents is likely to occur within 30 days and either (i)
the related Borrower has requested a material modification of the payment
terms of the related Mortgage Loan, or (ii) such default is likely to
remain unremedied for at least the period contemplated by clause (a) of
this definition; or
(c) the Master Servicer or Special Servicer (with the consent of
the Controlling Class Representative in the case of a determination by
the Special Servicer) has determined, in its reasonable judgment, that a
default, other than as described in clause (a) or (b) of this definition,
has occurred that may materially impair the value of the related
Mortgaged Property as security for the Mortgage Loan, which default has
continued unremedied for the applicable cure period under the terms of
the Mortgage Loan (or, if no cure period is specified, for 60 days),
provided, that the failure of the related Borrower to obtain all-risk
casualty insurance which does not contain any carve-out for terrorist or
similar acts (other than such amounts as are specifically allowed by the
related Loan Agreement) shall not apply with respect to this clause if
the Master Servicer has determined (which determination shall be subject
to the approval of the Controlling Class Representative and the
limitations of Section 3.24(b); provided that the Controlling Class
Representative's failure to respond to a request for such approval within
five (5) Business Days of such request shall be deemed approval) in
accordance with the Servicing Standard that either (a) such insurance is
not available at commercially reasonable rates or that such hazards are
not at the time commonly insured against for properties similar to the
Mortgaged Property and located in or around the region in which such
Mortgaged Property is located or (b) such insurance is not available at
any rate; or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary action
against the related Borrower under any present or future federal or state
bankruptcy, insolvency or similar law or the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding, or for
the winding-up or liquidation of its affairs, shall have been entered
against the related Borrower and such decree or order shall have remained
in force undismissed, undischarged or unstayed for a period of 60 days;
or
(e) the related Borrower shall have consented to the appointment
of a conservator, receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceeding of
or relating to such Borrower or of or relating to all or substantially
all of its property; or
(f) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended 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.
A Servicing Transfer Event with respect to any Mortgage Loan shall cease to
exist:
(w) in the case of the circumstances described in clause (a) above, if
and when the related Borrower has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan and
any related B Loan (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the
related Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the Master Servicer or the
Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (d),
(e) and (f) above, if and when such circumstances cease to exist
in the reasonable judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) above, if
and when such default is cured in the reasonable judgment of the
Special Servicer; and
(z) in the case of the circumstances described in clause (g) above, if
and when such proceedings are terminated.
"Significant Mortgage Loan": At any time, (a) any Mortgage Loan
(i) whose principal balance is $20,000,000 or more at such time or (ii) that is
(x) a Mortgage Loan, (y) part of a group of Crossed Mortgage Loans or (z) part
of a group of Mortgage Loans made to affiliated Borrowers that, in each case, in
the aggregate, represents 5% or more of the aggregate outstanding principal
balance of the Mortgage Pool at such time or (b) any one of the ten largest
Mortgage Loans (which for the purposes of this definition shall include groups
of Crossed Mortgage Loans and groups of Mortgage Loans made to affiliated
Borrowers) by outstanding principal balance at such time.
"Similar Law" shall mean any federal, state or local law
materially similar to the provisions of Title I of ERISA or Section 4975 of the
Code.
"Sole Certificateholder(s)" shall mean any Holder or group of
Holders, as the case may be, of 100% of the then outstanding Certificates (other
than the Class R and Class V Certificates).
"Special Reserve Account" shall mean a segregated custodial
account or accounts created and maintained by the Master Servicer, pursuant to
Section 2.03(d), on behalf of the Trustee in trust for the Certificateholders
and the related Mortgage Loan Seller, which shall be entitled "Midland Loan
Services, Inc., as the Master Servicer, in trust for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2006-C3, and [name of the related Mortgage
Loan Seller], Special Reserve Account."
"Special Servicer" shall mean Midland, in its capacity as special
servicer with respect to the Mortgage Pool and any related REO Properties
hereunder, or any successor special servicer with respect to the Mortgage Pool
and any related REO Properties appointed as provided herein.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, 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" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% (25 basis
points) per annum.
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Mortgage Loan, subject to Sections 1.04 and 2.01, the following
documents on a collective basis:
(i) the original executed Mortgage Note or, alternatively, if
the original executed Mortgage Note has been lost, a lost
note affidavit and indemnity with a copy of such Mortgage
Note;
(ii) an original or a copy of the Mortgage (with or without
recording information);
(iii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title
insurance marked as binding and countersigned or evidenced
as binding by escrow letter or closing instructions;
(iv) an original or copy of any Ground Lease; and
(v) any original Letter of Credit constituting Additional
Collateral and originals or copies of related amendment,
assignment or transfer documents; provided that in
connection with the delivery of the Mortgage File to the
Trust, the original of each Letter of Credit (and any
related amendment, assignment or transfer document) shall
be delivered to the Master Servicer and a copy thereof
shall be delivered to the Trustee or a Custodian on its
behalf;
provided that whenever the term "Specially Designated Mortgage Loan Documents"
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 and
instruments referred to in items (i) through (v) of this definition unless they
are actually so received; and provided, further, that the Specially Designated
Mortgage Loan Documents for any Mortgage Loan need not include any Letter of
Credit referred to in item (v) of this definition if, in lieu thereof, the
related Mortgage Loan Seller has, on behalf of the related Borrower, either (1)
delivered to the Trustee a substitute letter of credit, in the same amount and
with the same draw conditions and renewal rights as, and otherwise substantially
similar to, that Letter of Credit and issued by an obligor that meets any
criteria in the related Mortgage Loan Documents applicable to the issuer of that
Letter of Credit or (2) delivered to the Master Servicer a cash reserve in an
amount equal to the amount of that Letter of Credit, which substitute letter of
credit can be drawn on, or which cash reserve can be applied, to cover the same
items as that Letter of Credit was intended to cover.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as
to which there then exists a Servicing Transfer Event. Upon the occurrence of a
Servicing Transfer Event with respect to any Mortgage Loan, such Mortgage Loan
shall remain a Specially Serviced Mortgage Loan until the earliest of (i) its
removal from the Trust Fund, (ii) an REO Acquisition with respect to the related
Mortgaged Property, and (iii) the cessation of all existing Servicing Transfer
Events with respect to such Mortgage Loan.
"Startup Day" shall mean the Closing Date.
"State Tax Laws" shall mean the state and local tax laws of (a)
Minnesota, and (b) any other state, the applicability of which to the Trust Fund
or the Trust REMICs shall have been confirmed to the Trustee in writing either
by the delivery to the Trustee of an Opinion of Counsel to such effect (which
Opinion of Counsel shall not be at the expense of the Trustee), or by the
delivery to the Trustee of a written notification to such effect by the taxing
authority of such state.
"Stated Maturity Date" shall mean, with respect to any Mortgage
Loan, the Due Date specified in the related Mortgage Note (as in effect on the
Closing Date or, in the case of a Replacement Mortgage Loan, on the related date
of substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Master Servicer or 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" shall mean, with respect to any
Mortgage Loan (and any successor REO Mortgage Loan), a principal balance which
(a) initially shall equal the unpaid principal balance thereof as of the related
Due Date in June 2006 or, in the case of any Replacement Mortgage Loan, as of
the related date of substitution, in any event after application of all payments
of principal due thereon on or before such date, whether or not received, and
(b) shall be permanently reduced on each subsequent Distribution Date (to not
less than zero) by (i) that portion, if any, of the Principal Distribution
Amount for such Distribution Date attributable to such Mortgage Loan (or
successor REO Mortgage Loan), and (ii) the principal portion of any Realized
Loss incurred in respect of such Mortgage Loan (or successor REO Mortgage Loan)
during the related Collection Period; provided that, if a Liquidation Event
occurs in respect of any Mortgage Loan or REO Property, then the "Stated
Principal Balance" of such Mortgage Loan or of the related REO Mortgage Loan, as
the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred.
"Subordinate Certificates" shall mean, collectively, 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, Class P, Class Q, Class R
and Class LR Certificates.
"Subordinate Principal Balance Certificates" shall mean,
collectively, all of the Subordinate Certificates other than the Class R and
Class LR Certificates.
"Sub-Servicer" shall mean any Person with which the Master
Servicer or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean 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
Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount" shall mean, in connection with the
substitution of one or more Replacement Mortgage Loans for any Defective
Mortgage Loan, the amount, if any, by which the Purchase Price for such
Defective Mortgage Loan (calculated as if it were to be repurchased, instead of
replaced, on the relevant date of substitution), exceeds the Stated Principal
Balance or the aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s) as of the date of substitution.
"Tax Matters Person" shall mean, with respect to the Upper-Tier or
the Lower-Tier REMIC, 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,
pursuant to Section 10.01(b), be the Plurality Class R Certificateholder or the
Plurality Class LR Certificateholder, respectively.
"Tax Returns" shall mean the federal income tax return on IRS Form
1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holder of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return on IRS Form 1041 or any successor from to be filed on behalf of the
Grantor Trust, together with any and all other information, reports or returns
that may be required to be furnished to the Certificateholders or filed with the
IRS under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state or local tax laws.
"Termination Price" shall have the meaning assigned thereto in
Section 9.01(a).
"Transfer" shall mean any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"Transferee" shall mean any Person who is acquiring by Transfer
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by Transfer of
any Ownership Interest in a Certificate.
"Trust" shall mean the trust created hereby.
"Trust Assets" shall mean the assets comprising the Trust Fund.
"Trust Fund" shall mean, collectively, all of the assets of the
Upper-Tier REMIC, the Lower-Tier REMIC and Grantor Trust, together with the
Purchase Price Security Deposit Accounts, the Special Reserve Accounts and any
Recording Omission Reserves and Recording Omission Credits delivered by any
Mortgage Loan Seller or the Column Performance Guarantor to the Master Servicer
as contemplated by Section 2.03.
"Trust REMIC" shall mean the Lower-Tier REMIC or the Upper-Tier
REMIC.
"Trustee" shall mean Xxxxx Fargo, in its capacity as trustee
hereunder, or any successor trustee appointed as provided herein.
"Trustee Report" shall have the meaning assigned thereto in
Section 4.02(a).
"Trustee's Fee" shall mean, with respect to any Mortgage Loan or
REO Mortgage Loan, the fee designated as such and payable to the Trustee
pursuant to Section 8.05(a).
"Trustee's Fee Rate" shall mean 0.0012% per annum.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement
executed and filed pursuant to the Uniform Commercial Code, as in effect in any
relevant jurisdiction.
"Uncertificated Lower-Tier Interests" shall mean any of the Class
XX-0, Xxxxx XX-0, Class LA-AB, Class LA-3, Class LA-1-A, Class LA-M, Class LA-J,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ,
Class LK, Class LL, Class LM, Class LN, Class LO, Class LP and Class LQ
Uncertificated Interests.
"Underwriters" shall mean, collectively, Credit Suisse, PNCCM and
JPM.
"Underwriter Exemption" shall mean PTE 89-90, as amended by XXX
00-00, XXX 0000-00 and PTE 2002-41, and as may be subsequently amended following
the Closing Date.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership (except to the extent provided in
applicable Treasury regulations), or other entity (including any 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 or the District
of Columbia, or an estate whose income is includible 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 (including certain trusts in
existence on August 20, 1996 that are eligible to elect to be treated as United
States Tax Persons.
"Unrestricted Servicer Reports" shall mean, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report, CMSA REO Status Report
and, if and to the extent filed with the Commission, such reports and files as
would, but for such filing, constitute Restricted Master Servicer Reports.
"Upper-Tier Distribution Account" shall mean the account, accounts
or sub-account created and maintained by the Trustee, pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Trustee, for the Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Upper-Tier Distribution Account." Any such account or accounts shall be
an Eligible Account or a subaccount of an Eligible Account.
"Upper-Tier REMIC" shall mean one of two separate REMICs
comprising the Trust Fund, the assets of which consist of the Uncertificated
Lower-Tier Interests and such amounts as shall from time to time be held in the
Upper-Tier Distribution Account.
"USAP" shall mean the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional Appraisal
Practices.
"Voting Rights" shall mean the voting rights evidenced by the
respective Certificates. At all times during the term of this Agreement, (i)
99.0% of the Voting Rights shall be allocated among all the Holders of the
various Classes of Principal Balance Certificates (so long as any such Class of
Certificates has been transferred by the Initial Purchaser or an Affiliate
thereof as part of the initial offering of the Certificates and therefore such
Class of Certificates is not part of the Initial Purchaser's unsold allotment),
in proportion to the respective Class Principal Balances of such Classes, (ii)
1.0% of the Voting Rights shall be allocated between the Holders of the two
Classes of Interest Only Certificates in proportion to the respective Class
Notional Amounts of such Classes and (iii) 0% for any Class of Principal Balance
Certificates for as long as any such Class of Certificates has not been
transferred by the Initial Purchaser or an Affiliate thereof as part of the
initial offering of the Certificates and therefore such Class of Certificates is
part of the Initial Purchaser's unsold allotment). Voting Rights allocated to a
particular Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the respective Percentage Interests
evidenced by their respective Certificates. No Voting Rights shall be allocated
to the Class R, Class LR or Class V Certificates.
"Website" shall mean the internet website maintained by the
Trustee initially located at "xxx.xxxxxxx.xxx," or the internet website of the
Master Servicer initially located at "xxx.xxxxxxxxx.xxx."
"Weighted Average Net Mortgage Rate" shall mean, as to any
Distribution Date, the average, as of such Distribution Date, of the Net
Mortgage Pass-Through Rates of the Mortgage Loans weighted by the Stated
Principal Balances thereof; provided that such rate shall not take into account
any modification of the Mortgage Rate after the Closing Date or any modification
of the Mortgage Rate in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower.
"Xxxxx Fargo" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Workout-Delayed Reimbursement Amount" shall mean, with respect to
any Mortgage Loan, the amount of any Advance made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes a Corrected Mortgage Loan,
together with (to the extent accrued and unpaid) interest on such Advances, to
the extent that (i) such Advance is not reimbursed to the Person who made such
Advance on or before the date, if any, on which such Mortgage Loan becomes a
Corrected Mortgage Loan and (ii) the amount of such Advance becomes an
obligation of the Borrower to pay such amount under the terms of the modified
Loan Documents. The fact that any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance.
"Workout Fee" shall mean, with respect to each Corrected Mortgage
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" shall mean, with respect to each Corrected
Mortgage Loan, 1.0% (100 basis points).
"Yield Maintenance Certificates" shall mean the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates.
"Yield Maintenance Charge" shall mean, with respect to any
Mortgage Loan, any premium, fee or other additional amount paid or payable, as
the context requires, by a Borrower in connection with a Principal Prepayment
on, or other early collection of principal of, a Mortgage Loan, calculated, in
whole or in part, pursuant to a yield maintenance formula or otherwise pursuant
to a formula that reflects the lost interest, including a Yield Maintenance
Minimum Amount.
"Yield Maintenance Minimum Amount" shall mean, with respect to a
Mortgage Loan that provides for a Yield Maintenance Charge to be paid in
connection with any Principal Prepayment thereon or other early collection of
principal thereof, any specified amount or specified percentage of the amount
prepaid which constitutes the minimum amount that such Yield Maintenance Charge
may be.
"Yield Rate" shall mean, with respect to any Mortgage Loan, a rate
equal to a per annum rate calculated by the linear interpolation of the yields,
as reported in the most recent "Federal Reserve Statistical Release H.15 -
Selected Interest Rates" under the heading U.S. Government Securities/Treasury
constant maturities published prior to the date of the relevant prepayment of
any Loan, of U.S. Treasury constant maturities with maturity dates (one longer,
one shorter) most nearly approximating the maturity date (or, with respect to
ARD Mortgage Loans, the Anticipated Repayment Date) of the Loan being prepaid or
the monthly equivalent of such rate. If Federal Reserve Statistical Release H.15
- Selected Interest Rates is no longer published, the Master Servicer, on behalf
of the Trustee, will select a comparable publication to determine the Yield
Rate.
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 have the meanings assigned
to them in this Agreement and 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; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool
(a) All amounts collected by or on behalf of the Trust in respect
of any Cross-Collateralized Group in the form of payments from Borrowers,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be
applied among the Mortgage Loans constituting such Cross-Collateralized Group in
accordance with the express provisions of the related Mortgage Loan Documents
and, in the absence of such express provisions, in accordance with the Servicing
Standard. All amounts collected by or on behalf of the Trust in respect of or
allocable to any particular Mortgage Loan (whether or not such Mortgage Loan
constitutes part of a Cross-Collateralized Group) in the form of payments from
Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Loan Documents and, in the
absence of such express provisions or if and to the extent that such terms
authorize the lender to use its discretion, shall be applied: first, as a
recovery of any related and unreimbursed Servicing Advances, if applicable,
unpaid Liquidation Expenses and, to the extent not covered by Liquidation
Expenses, Additional Trust Fund Expenses and other fees and expenses payable to
any Master Servicer, any Special Servicer or the Trustee and attributable to
such Mortgage Loan; second, as a recovery of any related Nonrecoverable Advances
(and Advance Interest thereon) and Workout-Delayed Reimbursement Amounts that
were paid from principal collections on the Mortgage Loans, third, as a recovery
of accrued and unpaid interest on such Mortgage Loan to, but not including, the
date of receipt by or on behalf of the Trust (or, in the case of a full Monthly
Payment from any Borrower, through the related Due Date), exclusive, however, of
any portion of such accrued and unpaid interest that constitutes Default
Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, that constitutes Post-ARD Additional Interest; fourth as a recovery of
principal of such Mortgage Loan then due and owing, including by reason of
acceleration of the Mortgage Loan following a default thereunder (or, if a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of principal to the extent of its entire remaining unpaid principal balance);
fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan,
as a recovery of amounts to be currently applied to the payment of, or escrowed
for the future payment of, real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items; sixth, unless a Liquidation
Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve
Funds to the extent then required to be held in escrow; seventh, as a recovery
of any Prepayment Premium or Yield Maintenance Charge then due and owing under
such Mortgage Loan; eighth, as a recovery of any Default Charges then due and
owing under such Mortgage Loan; ninth, as a recovery of any assumption fees and
modification fees then due and owing under such Mortgage Loan; tenth, as a
recovery of any other amounts then due and owing under such Mortgage Loan other
than remaining unpaid principal and, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, other than Post-ARD Additional Interest;
eleventh, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance; and, twelfth, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery
of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan to
but not including the date of receipt by or on behalf of the Trust.
(b) Collections by or on behalf of the Trust in respect of each
REO Property (exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property) shall be
treated: first, as a recovery of any related and unreimbursed Servicing Advances
and, if applicable, unpaid Liquidation Expenses and, to the extent not covered
by Liquidation Expenses, Additional Trust Fund Expenses or other fees and
expenses payable to any Master Servicer, any Special Servicer or the Trustee and
attributable to such REO Property or the related REO Mortgage Loan; second, as a
recovery of any related Nonrecoverable Advances (and Advance Interest thereon)
and Workout-Delayed Reimbursement Amounts that were paid from principal
collections on the Mortgage Loan; third, as a recovery of accrued and unpaid
interest on the related REO Mortgage Loan to, but not including, the Due Date in
the Collection Period of receipt, by or on behalf of the Trust exclusive,
however, of any portion of such accrued and unpaid interest that constitutes
Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD
Additional Interest; fourth as a recovery of principal of the related REO
Mortgage Loan to the extent of its entire unpaid principal balance; fifth, as a
recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due
and owing in respect of the related REO Mortgage Loan; sixth, as a recovery of
any Default Charges deemed to be due and owing in respect of the related REO
Mortgage Loan; seventh, as a recovery of any other amounts deemed to be due and
owing in respect of the related REO Mortgage Loan (other than, in the case of an
REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated
Repayment Date, accrued and unpaid Post-ARD Additional Interest); and eighth, in
the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its
Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD
Additional Interest on such REO Mortgage Loan to but not including the date of
receipt by or on behalf of the Trust.
(c) For the purposes of this Agreement, Post-ARD Additional
Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan 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, notwithstanding that the terms of the
related loan documents so permit. To the extent any Post-ARD Additional Interest
is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to shared fees and shared charges owing in respect of
such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of
any Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from such Master Servicer and in the
appropriate monthly Statement to Certificateholders as provided in Section 4.02.
Section 1.04 Cross-Collateralized Mortgage Loans
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Certain Adjustments to the Principal Distributions
on the Certificates
(a) If, in accordance with the provisions of this Agreement, any
party hereto is reimbursed out of general collections (but solely principal
collections with respect to Workout-Delayed Reimbursement Amounts) on the
Mortgage Pool on deposit in the Collection Account for any Nonrecoverable
Advance or any Workout-Delayed Reimbursement Amount (in each case, together with
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 any amounts then on deposit in the Collection
Account that represent payments or other collections of principal received by
the Trust with respect to the Mortgage Pool that, but for their application to
reimburse a Nonrecoverable Advance or Workout-Delayed Reimbursement Amount, as
applicable, and/or to pay interest thereon, would be included in the Available
Distribution Amount for any subsequent Distribution Date;
second, out of any amounts (but solely principal collections with
respect to Workout-Delayed Reimbursement Amounts) then on deposit in the
Collection Account that represent any other payments or other collections
received by the Trust with respect to the Mortgage Pool that, but for their
application to reimburse a Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount, as applicable, and/or to pay interest thereon, would be
included in the Available Distribution Amount for any subsequent Distribution
Date; and
third, out of any other amounts (but solely principal collections
with respect to Workout-Delayed Reimbursement Amounts) then on deposit in the
Collection Account that may be available to reimburse the subject Nonrecoverable
Advance or Workout-Delayed Reimbursement Amount, as applicable, and/or to pay
interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be applied in
accordance with clause first of the preceding paragraph to reimburse a
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount, as applicable,
or in each case, to pay interest thereon, and further if and to the extent that
such payment or other collection of principal constitutes part of the Total
Principal Distribution Amount for any Distribution Date, then the Principal
Distribution Amount for such Distribution Date shall be reduced by the portion,
if any, of such payment or other collection of principal that, but for the
application of this paragraph, would have been included as part of such
Principal Distribution Amount.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount, as applicable,
such Advance is reimbursed out of general collections on the Mortgage Pool as
contemplated by Section 1.05(a) above and the particular item for which such
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount was originally
made is subsequently collected out of payments or other collections in respect
of the related Mortgage Loan, then the Principal Distribution Amount for the
Distribution Date that corresponds to the Due Period in which such item was
recovered shall be increased by an amount equal to the lesser of (A) the amount
of such item and (B) any previous reduction in the Principal Distribution Amount
for a prior Distribution Date pursuant to Section 1.05(b) above resulting from
the reimbursement of the subject Advance and/or the payment of interest thereon.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF UNCERTIFICATED LOWER-TIER INTERESTS;
EXECUTION OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans
(a) It is the intention of the parties hereto that a common law
trust be established under the laws of the State of New York pursuant to this
Agreement and, further, that such trust be designated as "CSMC Commercial
Mortgage Trust 2006-C3." Xxxxx Fargo is hereby appointed, and does hereby agree,
to act as Trustee hereunder and, in such capacity, to hold the Trust Fund in
trust for the exclusive use and benefit of all present and future
Certificateholders. It is not intended that this Agreement create a partnership
or a joint-stock association.
The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, without recourse, for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under (i) the Original
Mortgage Loans, (ii) the Mortgage Loan Purchase Agreements and (iii) 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
Original Mortgage Loans (other than payments of principal and interest due and
payable on the Original Mortgage Loans on or before the Cut-off Date and
Principal Prepayments paid on or before the Cut-off Date). The transfer of the
Original 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.
Under GAAP, the Depositor shall report and cause all of its
records to reflect: (i) its acquisition of the Original Mortgage Loans from
Column, pursuant to the Mortgage Loan Purchase Agreement, as a purchase of such
Mortgage Loans from Column and (ii) its transfer of the Original Mortgage Loans
to the Trust, pursuant to this Section 2.01(a), as a sale of such Mortgage Loans
to the Trust; provided that, in the case of the transactions described in
clauses (i) and (ii) of this sentence, the Depositor shall do so only upon the
sale of Certificates representing at least 10% of the aggregate fair value of
all the Certificates to parties that are not Affiliates of the Depositor.
Regardless of its treatment of the transfer of the Original Mortgage Loans to
the Trust under GAAP, the Depositor shall at all times following the Closing
Date cause all of its records and financial statements and any relevant
consolidated financial statements of any direct or indirect parent clearly to
reflect that the Original Mortgage Loans have been transferred to the Trust and
are no longer available to satisfy claims of the Depositor's creditors.
(b) The conveyance of the Original Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties hereto to constitute an absolute transfer of such Mortgage Loans and
such other related rights and property by the Depositor to the Trustee for the
benefit of the Certificateholders. Furthermore, it is not intended that such
conveyance be a pledge of security for a loan. If such conveyance is determined
to be a pledge of security for a loan, however, the Depositor and the Trustee
intend 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, (i) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in all of the Depositor's right, title and interest in and to
the assets constituting the Trust Fund, including the Mortgage Loans subject
hereto from time to time, all principal and interest received on or with respect
to such Mortgage Loans after the Closing Date (other than scheduled payments of
interest and principal due and payable on such Mortgage Loans on or prior to the
related Due Date in June 2006 or, in the case of a Replacement Mortgage Loan, on
or prior to the related date of substitution), all amounts held from time to
time in each Collection Account, the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account and, if established, the REO
Account, each Purchase Price Security Deposit Account and/or each Special
Reserve Account and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest under the Mortgage Loan Purchase
Agreements and the Column Performance Guarantee, (iii) the possession by the
Trustee or its agent of the Mortgage Notes with respect to the Mortgage Loans
subject hereto from time to time and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or person
designated by such secured party for the purpose of perfecting such security
interest under applicable law, and (iv) notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the Trustee for
the purpose of perfecting such security interest under applicable law.
(c) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related 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, on or before the Closing Date, the
Mortgage File and any Additional Collateral (other than Reserve Funds) for each
Original Mortgage Loan acquired by the Depositor from such Mortgage Loan Seller;
provided that in connection with the delivery of the Mortgage File to the Trust,
the original of each Letter of Credit (and any related amendment or assignment)
shall be delivered to the Master Servicer and copy thereof shall be delivered to
the Trustee or the Custodian appointed thereby. The Depositor shall deliver to
the Trustee on or before the Closing Date a fully executed counterpart of each
Mortgage Loan Purchase Agreement and the Column Performance Guarantee.
Notwithstanding the foregoing, if any Mortgage Loan Seller is
unable to deliver any Letter of Credit constituting Additional Collateral for
any of its Original Mortgage Loans, then that Mortgage Loan Seller may, in lieu
thereof, deliver on behalf of the related Borrower, to be used for the same
purposes as such missing Letter of Credit either: (i) a substitute instrument
substantially comparable to, but in all cases in the same amount and with the
same draw conditions and renewal rights as, that Letter of Credit and issued by
an obligor that meets any criteria in the related Mortgage Loan Documents
applicable to the issuer of that Letter of Credit; or (ii) a LOC Cash Reserve in
an amount equal to the amount of that Letter of Credit. For purposes of the
delivery requirements of this Section 2.01, any such substitute instrument shall
be deemed to be Additional Collateral of the type covered by the prior paragraph
of this Section 2.01(d) and any such LOC Cash Reserve shall be deemed to be
Reserve Funds of the type covered by Section 2.01(f).
Notwithstanding the foregoing, if the 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), (viii) (other than
assignments of UCC Financing Statements to be filed in accordance with the
transfer contemplated by the Mortgage Loan Purchase Agreement), (x) and (xii) of
the definition of "Mortgage File," with evidence of recording or filing thereon,
solely because of a delay caused by the public recording or filing office where
such document or instrument has been delivered for recordation or filing, the
delivery requirements of the Mortgage Loan Purchase Agreement and this Section
2.01(b) shall be deemed to have been satisfied and such non-delivered document
or instrument shall be deemed to have been included in the Mortgage File if: (i)
a photocopy or duplicate original of such non-delivered document or instrument
(certified by the applicable public recording or filing office, the applicable
title insurance company or the Mortgage Loan Seller to be a true and complete
copy of the original thereof submitted for recording or filing) is delivered to
the Trustee, on or before the Closing Date; and (ii) either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate public recording or filing office to be a true and complete copy of
the original thereof submitted for recording or filing), with evidence of
recording or filing thereon, is delivered to the Trustee within 120 days of the
Closing Date, which period may be extended up to two times, in each case for an
additional period of 45 days (provided that the Mortgage Loan Seller, as
certified in writing to the Trustee prior to each such 45-day extension, is in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
Notwithstanding the foregoing, if any Mortgage Loan Seller fails
to deliver a UCC Financing Statement assignment on or before the Closing Date as
required above solely because the related UCC Financing Statement has not been
returned to the Mortgage Loan Seller by the applicable filing office and the
Mortgage Loan Seller has so notified the Trustee, the Mortgage Loan Seller shall
not be in breach of its obligations with respect to such delivery; provided that
the Mortgage Loan Seller promptly forwards such UCC Financing Statement to the
Trustee upon its return, together with the related original UCC Financing
Statement assignment in a form appropriate for filing.
(d) At the expense of the Mortgage Loan Seller, the Trustee
(directly or through its designee) shall, as to each Trust Mortgage Loan, use
its best efforts to promptly (and in any event no later than the later of (i) 90
days after the Closing Date (or, in the case of a Replacement Trust Mortgage
Loan, the related date of substitution) and (ii) 60 days from receipt of
documents in form suitable for recording or filing, as applicable, including,
without limitation, all necessary recording and filing information) cause to be
submitted for recording or filing, as the case may be, each assignment referred
to in clauses (iv) and (v) of the definition of "Mortgage File" and each UCC
Financing Statement assignment to the Trustee referred to in clause (viii) of
the definition of "Mortgage File." Unless otherwise indicated on any documents
provided to the Trustee, the Trustee shall file each such UCC Financing
Statement assignment in the state of incorporation or organization of the
related Borrower; provided that the Mortgage Loan Seller shall have filed, if
necessary, an initial UCC Financing Statement under the Revised Article 9 in
lieu of continuation in such jurisdiction. Each such assignment shall reflect
that it should be returned by the public recording office to the Trustee
following recording, and each such UCC Financing Statement assignment shall
reflect that the file copy thereof should be returned to the Trustee following
filing. If any such document or instrument is lost or returned unrecorded or
unfiled because of a defect therein, the Trustee shall 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. The respective Mortgage Loan Purchase
Agreements provide for the reimbursement of the Trustee, in each case by the
Mortgage Loan Seller, for the Trustee's costs and expenses incurred in
performing its obligation under this Section 2.01(c).
Notwithstanding the foregoing, any Mortgage Loan Seller may elect,
at its sole cost and expense, to engage a third party contractor to prepare or
complete in proper form for filing and recording any and all of the assignments
described in the immediately preceding paragraph, including UCC-2 and UCC-3
assignments, with respect to the Original Mortgage Loans conveyed by it to the
Depositor under the applicable Mortgage Loan Purchase Agreement, to submit such
assignments for filing and recording, as the case may be, in the applicable
public filing and recording offices and to deliver such assignments to the
Trustee or its designee as such assignments (or certified copies thereof) are
received from the applicable filing and recording offices with evidence of such
filing and recording indicated thereon. It is hereby acknowledged that the PNC
Mortgage Loan Seller has elected to engage such a third party contractor for the
preparation, filing and recording and delivery of such assignments to the
Trustee in respect of the Original PNC Mortgage Loans. The Trustee shall have no
duties or obligations described in the immediately preceding paragraph in
respect of the Original PNC Mortgage Loans or any other Mortgage Loan Seller
that makes a similar election with respect to its Original Mortgage Loans.
(e) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Master Servicer within three (3) Business Days after the Closing Date, the
following items (except to the extent any of the following items are to be
retained by a Sub-Servicer that will continue to act on behalf of the Master
Servicer): (i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, third-party underwriting
reports, insurance policies, legal opinions, tenant estoppels and any other
relevant documents that the Master Servicer or Special Servicer reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of such Mortgage Loan Seller that relate to the Original Mortgage Loans
transferred by it to the Depositor, copies of all documents required to be
delivered by such Mortgage Loan Seller to the Trustee or Custodian as a part of
a Mortgage File and, to the extent they are not required to be a part of a
Mortgage File for any such Original Mortgage Loan, originals or copies of all
documents, certificates and opinions in the possession or under the control of
such Mortgage Loan Seller that were delivered by or on behalf of the related
Borrowers in connection with the origination of such Original Mortgage Loans
(provided, however, that such Mortgage Loan Seller shall not be required to
deliver any attorney-client privileged communication or any other documents or
materials prepared by it or its Affiliates solely for internal credit analysis
or other internal uses); and (ii) all unapplied Reserve Funds and Escrow
Payments in the possession or under the control of such Mortgage Loan Seller
that relate to the Original Mortgage Loans transferred by such Mortgage Loan
Seller to the Depositor. The Master Servicer shall hold all such documents,
records and funds that it so receives on behalf of the Trustee in trust for the
benefit of the Certificateholders and, insofar as such items relate to a B Loan,
the related B Loan Holder.
In addition, with respect to each Mortgage Loan under which any
Additional Collateral is in the form of a Letter of Credit as of the Closing
Date, the Depositor hereby represents and warrants that it has contractually
obligated the related Mortgage Loan Seller to cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to (and vest in) the Trustee such party's rights as the
beneficiary thereof and drawing party thereunder, such assignment to be
evidenced by an acknowledgement of the issuer or a reissued letter of credit
delivered to the Master Servicer or the Trustee.
(f) Also in connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the Master Servicer, on or before the
Closing Date, the original or a copy of any Group Environmental Insurance Policy
(and, if not included in the Servicing File for the subject Mortgage Loan, any
other Environmental Insurance Policy) acquired by the Depositor or an Affiliate
of the Depositor.
(g) The Depositor shall use reasonable efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Original Mortgage
Loans in the name of the Mortgage Loan Seller or any other name, to be
transferred to the Master Servicer (or a Sub-Servicer at the direction of the
Master Servicer) for deposit into Servicing Accounts.
(h) For purposes of this Section 2.01, and notwithstanding any
contrary provision hereof or of the definition of "Mortgage File," if there
exists with respect to any group of Crossed Mortgage Loans only one original or
certified copy of any document or instrument described in the definition of
"Mortgage File" which pertains to all of the Crossed Mortgage Loans in such
group of Crossed Mortgage Loans, the inclusion of the original or certified copy
of such document or instrument in the Mortgage File for any of such Crossed
Mortgage Loans and the inclusion of a copy of such original or certified copy in
each of the Mortgage Files for the other Crossed Mortgage Loans in such group of
Crossed Mortgage Loans shall be deemed the inclusion of such original or
certified copy in the Mortgage Files for each such Crossed Mortgage Loan.
(i) The Trustee hereby acknowledges the receipt by it of the
Closing Date Deposit Amount. The Trustee shall hold such Closing Date Deposit
Amount in the Distribution Account and shall include the Closing Date Deposit
Amount in the Available Distribution Amount for the first Distribution Date. The
Closing Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance of Mortgage Assets by Trustee
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it, subject to the provisions of Sections 2.01 and
2.02(c), to any exceptions noted on the Trustee Exception Report, and to the
further review provided for in Section 2.02(b), of the Notes, fully executed
original counterparts of the Mortgage Loan Purchase Agreements and of all other
assets included in the Trust Fund, in good faith and without notice of any
adverse claim, and declares that it holds and will hold such documents and any
other documents delivered or caused to be delivered by the Mortgage Loan Sellers
constituting the Mortgage Files, and that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders; provided that to the extent that a
Mortgage File relates to an A Loan, the Trustee shall also hold such Mortgage
File in the trust on behalf of the related B Loan Holders; provided further that
the Trustee or any Custodian appointed by the Trustee pursuant to Section 8.12
shall hold any Letter of Credit in a custodial capacity only and shall have no
obligation to maintain, extend the term of, enforce or otherwise pursue any
rights under such Letter of Credit which obligation the Master Servicer hereby
undertakes.
In connection with the foregoing, the Trustee hereby certifies to
each of the other parties hereto and the Mortgage Loan Sellers that, as to each
Original Mortgage Loan, except as to any LOC Cash Reserve and except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Exhibit B-2, (i) the Specially Designated Mortgage Loan
Documents and all Mortgage Note allonges are in its possession or the possession
of a Custodian on its behalf, and (ii) such Specially Designated Mortgage Loan
Documents, and all Mortgage Note allonges, have been reviewed by it or by such
Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Borrower), (B) appear to have been executed and (C) purport to
relate to such Mortgage Loan; provided that with respect to any Letters of
Credit, the Trustee's certification shall be based upon copies of the Letters of
Credit (including related amendment, assignment and transfer documents)
delivered to the Trustee or its Custodian. To the extent that the contents of
the Mortgage File for any A Loan relate to the corresponding B Loan, the Trustee
will also hold such Mortgage File in trust for the benefit of the holder of the
related B Loan.
(b) On or about the 60th day following the Closing Date (and, if
any exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, and (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund), the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Original Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.02(b) and 2.02(c), certify in writing
(substantially in the form of Exhibit B-3) to each of the other parties hereto,
the Mortgage Loan Sellers and the Controlling Class Representative that, as to
each Original Mortgage Loan then subject to this Agreement (except as to any LOC
Cash Reserve and except as specifically identified in any exception report
annexed to such certification): (i) the original Mortgage Note specified in
clause (i) of the definition of "Mortgage File" and all allonges thereto, if any
(or a copy of such Mortgage Note, together with a lost note affidavit certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii) through (v), (vii), (ix), (xi), (xii), (xv),
(xvi) and (xviii) of the definition of "Mortgage File" and, in the case of a
hospitality property, the documents specified in clause (viii) of the definition
of "Mortgage File" (without regard to the parenthetical), and any other
Specially Designated Mortgage Loan Documents, have been received by it or a
Custodian on its behalf; (ii) if such report is due more than 180 days after the
Closing Date, the recordation/filing contemplated by Section 2.01(d) has been
completed (based solely on receipt by the Trustee of the particular
recorded/filed documents or an appropriate receipt of recording/filing
therefor); (iii) all documents received by it or any Custodian with respect to
such Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Mortgage
Loan. Further, with respect to the documents described in clause (viii) of the
definition of the Mortgage File, the Trustee may assume, for purposes of the
certification delivered pursuant to this Section 2.02(b), that the related
Mortgage File should include one state level UCC Financing Statement filing in
the state of incorporation of the related Borrower for each Mortgaged Property,
or, with respect to any Mortgage Loan that has two or more Borrowers, one state
level UCC Financing Statement filing in the state of incorporation of each such
Borrower. The Trustee shall, upon request, provide the Master Servicer with
recording and filing information as to recorded Mortgages, Assignments of Lease
and UCC Financing Statements to the extent that the Trustee receives them from
the related recording offices.
If a Mortgage Loan Seller or the Column Performance Guarantor
substitutes a Replacement Mortgage Loan for any Defective Mortgage Loan as
contemplated by Section 2.03, the Trustee or a Custodian on its behalf shall
review the documents delivered to it or such Custodian with respect to such
Replacement Mortgage Loan, and the Trustee shall deliver a certification
comparable to that described in the prior paragraph, in respect of such
Replacement Mortgage Loan, on or about the 30th day following the related date
of substitution (and, if any exceptions are noted, every 90 days thereafter
until the earliest of (i) the date on which such exceptions are eliminated and
all related recording/filing has been completed, and (ii) the date on which such
Replacement Mortgage Loan is removed from the Trust Fund).
(c) It is herein acknowledged that the Trustee is not under any
duty or obligation (i) to determine whether any of the documents specified in
clauses (vi), (x), (xiii), (xiv), (xvii) and (xix) of the definition of
"Mortgage File" and all documents specified on the related Mortgage Loan
checklist exist or are required to be delivered by the Depositor, the Mortgage
Loan Seller or any other Person other than to the extent identified on the
related Mortgage Loan Schedule, or (ii) 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, in
recordable form, genuine, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. To the extent the Trustee has actual knowledge or is notified of any
fixture or real property UCC Financing Statements, the Trustee shall file an
assignment to the Trust with respect to such UCC Financing Statements in the
appropriate jurisdiction under the UCC at the expense of the Mortgage Loan
Seller.
(d) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee finds that a Defect exists with respect to any
Mortgage File, the Trustee shall promptly so notify the Depositor, the Master
Servicer, the Special Servicer and the Mortgage Loan Seller (and, solely with
respect to any A/B Loan Pair, the related B Loan Holder(s), as applicable), by
providing a written report (the "Trustee Exception Report") setting forth for
each affected Mortgage Loan, with particularity, the nature of such Defect. The
Trustee shall not be required to verify the conformity of any document with the
Mortgage Loan Schedule, except that such documents have been properly executed
or received, have been recorded or filed (if recordation is specified for such
document in the definition of "Mortgage File"), appear to be related to the
Mortgage Loans identified on the Mortgage Loan Schedule, appear to be what they
purport to be, or have not been torn, mutilated or otherwise defaced.
Section 2.03 Certain Repurchases and Substitutions of Mortgage
Loans by the Mortgage Loan Sellers and the Column
Performance Guarantor; the Purchase Price Security
Deposit Account and the Special Reserve Account
(a) If any party hereto discovers, or receives notice from a
non-party, that a Document Defect or Breach exists with respect to any Mortgage
Loan, then such party shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt of notice
that a Document Defect or Breach exists with respect to any Mortgage Loan, the
Trustee shall notify the Controlling Class Representative, the Depositor, the
related Mortgage Loan Seller and the Column Performance Guarantor (if a Column
Mortgage Loan is involved).
If necessary, the Trustee shall request each Mortgage Loan Seller
to comply with the second paragraph of Section 2(c) of the related Mortgage Loan
Purchase Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to an Original Mortgage Loan transferred by such Mortgage
Loan Seller to the Depositor. If the Trustee becomes aware of any failure on the
part of any Mortgage Loan Seller to do so, the Trustee shall promptly notify the
Master Servicer and the Special Servicer.
(b) Promptly upon its becoming aware of any Material Document
Defect or Material Breach with respect to any Mortgage Loan, the Master Servicer
shall (and the Special Servicer may) notify the related Mortgage Loan Seller
and, if the affected Mortgage Loan is a Column Mortgage Loan, the Column
Performance Guarantor, in writing of such Material Document Defect or Material
Breach, as the case may be, and direct the related Mortgage Loan Seller and, if
the affected Mortgage Loan is a Column Mortgage Loan, the Column Performance
Guarantor, that it or they, as the case may be, must, not later than 90 days
(or, in the case of a Material Document Defect that consists of the failure to
deliver a Specially Designated Mortgage Loan Document with respect to any
Mortgage Loan, 15 days) from the receipt by the related Mortgage Loan Seller
and, if the affected Mortgage Loan is a Column Mortgage Loan, the Column
Performance Guarantor, of such notice (or any earlier discovery by the related
Mortgage Loan Seller of the subject Material Document Defect or Material Breach,
as the case may be) (such 90-day (or, if applicable, 15-day) period, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects or, subject to the
next paragraph and Section 2.03(d) below, repurchase the affected Mortgage Loan
(as, if and to the extent required by the related Mortgage Loan Purchase
Agreement or the Column Performance Guarantee, as applicable), at the applicable
Purchase Price; provided that if the related Mortgage Loan Seller or,
alternatively, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, certifies to the Trustee in writing (i) that such
Material Document Defect or Material Breach, as the case may be, does not relate
to whether the affected Mortgage Loan is or, as of the Closing Date, was a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
that such Material Document Defect or Material Breach, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(iii) that the related Mortgage Loan Seller or, alternatively, if the affected
Mortgage Loan is a Column Mortgage Loan, the Column Performance Guarantor, has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, within the applicable Initial
Resolution Period, (iv) what actions the related Mortgage Loan Seller or,
alternatively, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, is pursuing in connection with the cure of such
Material Document Defect or Material Breach, as the case may be, and (v) that
the related Mortgage Loan Seller or, alternatively, if the affected Mortgage
Loan is a Column Mortgage Loan, the Column Performance Guarantor, anticipates
that such Material Document Defect or Material Breach, as the case may be, will
be cured within an additional period equal to any such applicable Resolution
Extension Period (a copy of which certification shall be delivered by the
Trustee to the Master Servicer, the Special Servicer and the Controlling Class
Representative), then the related Mortgage Loan Seller and, if the affected
Mortgage Loan is a Column Mortgage Loan, the Column Performance Guarantor, shall
have an additional period equal to any such applicable Resolution Extension
Period to complete such correction or cure (or, upon failure to complete such
correction or cure, to repurchase the affected Mortgage Loan); and provided,
further, that, in lieu of effecting any such repurchase (but, in any event, no
later than such repurchase would have to have been completed), the related
Mortgage Loan Seller and, if the affected Mortgage Loan is a Column Mortgage
Loan, the Column Performance Guarantor, shall be permitted, during the
three-month period following the Closing Date (or during the two-year period
following the Closing Date if the affected Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulations Section 1.860G-2(f), to replace the affected Mortgage Loan
with one or more Qualifying Substitute Mortgage Loans and to pay a cash amount
equal to the applicable Substitution Shortfall Amount, subject to any other
applicable terms and conditions of the related Mortgage Loan Purchase Agreement
or the Column Performance Guarantee, as applicable, and this Agreement. If any
Mortgage Loan is to be repurchased or replaced as contemplated by this Section
2.03, the Master Servicer shall designate its Collection Account as the account
to which funds in the amount of the applicable Purchase Price or Substitution
Shortfall Amount (as the case may be) are to be wired, and such Master Servicer
shall promptly notify the Trustee when such deposit is made. Any such repurchase
or replacement of a Mortgage Loan shall be on a whole loan, servicing released
basis.
Notwithstanding the foregoing, if there exists a Breach of any
representation or warranty on the part of a Mortgage Loan Seller set forth in,
or made pursuant to, Section 4(b) or 4(d) of the related Mortgage Loan Purchase
Agreement that the Mortgage Loan Documents or any particular Mortgage Loan
Document requires the related Borrower to bear the costs and expenses associated
with any particular action or matter under such Mortgage Loan Document(s), then
the Master Servicer shall (and the Special Servicer may) direct the related
Mortgage Loan Seller in writing to wire transfer to the Collection Account,
within 90 days of such Mortgage Loan Seller's receipt of such direction, the
amount of any such costs and expenses borne by the Trust that are the basis of
such Breach and have not been reimbursed by the related Borrower; provided,
however, that in the event any such costs and expenses exceed $10,000, the
related Mortgage Loan Seller shall have the option to repurchase such Mortgage
Loan at the applicable Purchase Price, substitute for such Mortgage Loan
(subject to the criteria for substitution) and pay the applicable Substitution
Shortfall Amount or pay such costs and expenses. Except as provided in the
proviso to the immediately preceding sentence, the related Mortgage Loan Seller
shall remit the amount of such costs and expenses and upon its making such
deposit, the related Mortgage Loan Seller shall be deemed to have cured such
Breach in all respects. Provided such payment is made, this paragraph describes
the sole remedy available to the Certificateholders and the Trustee on their
behalf regarding any such Breach, regardless of whether it constitutes a
Material Breach, and neither the related Mortgage Loan Seller nor, if the
affected Mortgage Loan is a Column Mortgage Loan, the Column Performance
Guarantor, shall be obligated to repurchase or otherwise cure such Breach under
any circumstances. Amounts deposited in the Collection Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of this
Agreement (other than Section 3.11(c).
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is and remains a Performing Mortgage
Loan throughout the applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and
ending on, and including, the earlier of (A) the 90th day following the
end of such Initial Resolution Period and (B) the 45th day following the
related Mortgage Loan Seller's receipt of written notice from the
Trustee, the Master Servicer or the Special Servicer of the occurrence of
any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to which
a Servicing Transfer Event occurs during such Initial Resolution Period,
the period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the 90th day following the earlier
of (A) the end of such Initial Resolution Period and (B) the related
Mortgage Loan Seller's receipt of written notice from the Trustee, the
Master Servicer or the Special Servicer of the occurrence of such
Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan
as of the commencement of the applicable Initial Resolution Period, zero
(-0-) days, except that, if the related Mortgage Loan Seller did not
receive written notice from the Trustee, the Master Servicer or the
Special Servicer of the relevant Servicing Transfer Event as of the
commencement of the applicable Initial Resolution Period, then such
Servicing Transfer Event will be deemed to have occurred during such
Initial Resolution Period and clause (iii) of this definition will be
deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document for any Mortgage
Loan; and provided, further, that if a Material Document Defect exists with
respect to any Mortgage Loan, and if the related Mortgage Loan Seller or the
Column Performance Guarantor, as the case may be, escrows with the Master
Servicer, prior to the end of the Initial Resolution Period and any Resolution
Extension Period otherwise applicable to the remediation of such Material
Document Defect without regard to this proviso, cash in the amount of the then
Purchase Price for such Mortgage Loan and subsequently delivers to the Master
Servicer, on a monthly basis, such additional cash as may be necessary to
maintain a total escrow equal to the Purchase Price for such Mortgage Loan as
such amount may increase over time (the total amount of cash delivered to the
Master Servicer with respect to any Mortgage Loan as contemplated by this
proviso or the immediately following proviso, the "Purchase Price Security
Deposit"), then the Resolution Extension Period applicable to the remediation of
such Material Document Defect shall be extended until the earliest of (i) the
second anniversary of the Closing Date, (ii) the date on which such Mortgage
Loan is no longer outstanding and part of the Trust Fund and (iii) if such
Mortgage Loan becomes a Specially Serviced Mortgage Loan, and if the Special
Servicer determines in its reasonable judgment that such Material Document
Defect will materially interfere with or delay the realization against the
related Mortgaged Property or materially increase the cost thereof, the 30th day
following the related Mortgage Loan Seller's receipt of written notice from the
Special Servicer of the occurrence of the related Servicing Transfer Event and
of such determination; and provided, further, that if the Material Document
Defect referred to in the preceding proviso consists of a failure to deliver a
Specially Designated Mortgage Loan Document with respect to a Mortgage Loan, and
if the related Mortgage Loan Seller or the Column Performance Guarantor, as the
case may be, delivers to the Master Servicer a Purchase Price Security Deposit
equal to 25% of the outstanding principal balance of the subject Mortgage Loan,
then the Resolution Extension Period applicable to the remediation of such
Material Document Defect shall be extended to the 15th day following the end of
the applicable Initial Resolution Period.
The Master Servicer shall establish, and maintain any Purchase
Price Security Deposit delivered to it with respect to any Mortgage Loan in, one
or more accounts (individually and collectively, a "Purchase Price Security
Deposit Account"), each of which shall be an Eligible Account, and shall be
entitled to make withdrawals from the Purchase Price Security Deposit for any
Mortgage Loan maintained in such account(s) for the following purposes: (i) to
cover any costs and expenses resulting from the applicable Material Document
Defect; (ii) upon any discounted payoff or other liquidation of such Mortgage
Loan, to cover any Realized Loss related thereto; and (iii) if the related
Mortgage Loan Seller (or, if it is the party that delivered the subject Purchase
Price Security Deposit, the Column Performance Guarantor) so directs, or if the
balance on deposit in such Purchase Price Security Deposit Account declines, and
for 45 days remains, below the Purchase Price for such Mortgage Loan (except
where a Purchase Price Security Deposit equal to 25% of the outstanding
principal balance of the subject Mortgage Loan is permitted to be delivered in
order to obtain a 15-day Resolution Extension Period with respect to the failure
to deliver a Specially Designated Mortgage Loan Document), or if such Material
Document Defect is not remedied on or before the second anniversary of the
Closing Date, or if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan and the Special Servicer determines, in its reasonable judgment that such
Material Document Defect will materially interfere with or delay the realization
against the related Mortgaged Property or materially increase the cost thereof
and the related Mortgage Loan Seller has received 30 days' prior written notice
from the Special Servicer of the occurrence of the related Servicing Transfer
Event and of such determination, to apply the Purchase Price Security Deposit to
a full or partial, as applicable, payment of the Purchase Price for such
Mortgage Loan. Any amounts withdrawn by the Master Servicer from the Purchase
Price Security Deposit Account for any Mortgage Loan shall be deposited by the
Master Servicer into its Collection Account. Any withdrawals from a Purchase
Price Security Deposit Account shall be deemed to be "Liquidation Proceeds" for
the purposes of this Agreement (other than Section 3.11(c). Any Purchase Price
Security Deposit Account, and any Purchase Price Security Deposit, shall (a) be
part of the Trust Fund but outside either Trust REMIC or the Grantor Trust and
(b) be an "outside reserve fund" within the meaning of the REMIC Provisions,
beneficially owned by the related Mortgage Loan Seller or the Column Performance
Guarantor, as applicable, for federal income tax purposes, which shall be
taxable on all reinvestment income, if any, thereon. The investment of funds in
the Purchase Price Security Deposit Accounts shall be governed by the terms of
the respective Mortgage Loan Purchase Agreements. The related Mortgage Loan
Seller (or, if it is the party that delivered such amount, the Column
Performance Guarantor) may obtain a release of the Purchase Price Security
Deposit for any Mortgage Loan (net of any amounts payable therefrom as
contemplated by the first sentence of this paragraph) upon such Mortgage Loan's
being paid in full or otherwise satisfied, liquidated or removed from the Trust
Fund or upon the subject Material Document Defect's being remedied in all
material respects. Any such repurchase or replacement of a Mortgage Loan shall
be on a whole loan, servicing released basis.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by a Mortgage Loan
Seller or the Column Performance Guarantor, as contemplated by this Section
2.03, then, prior to the subject repurchase or substitution, the Master Servicer
shall use its reasonable efforts, subject to the terms of the affected Mortgage
Loans, to prepare and, to the extent necessary and appropriate, have executed by
the related Borrower and record, such documentation as may be necessary to
terminate the cross-collateralization between the Mortgage Loans in such
Cross-Collateralized Group that are to be repurchased or replaced, on the one
hand, and the remaining Mortgage Loans therein, on the other hand, such that
those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto; provided that no such termination shall be effected unless and until
the related Mortgage Loan Seller or the Column Performance Guarantor, as
applicable, delivers to the Trustee and the Master Servicer (i) an Opinion of
Counsel addressed to the Trustee and the Master Servicer from Independent
counsel to the effect that such termination will not cause an Adverse REMIC
Event to occur with respect to the Upper-Tier REMIC or Lower-Tier REMIC or an
Adverse Grantor Trust Event with respect to the Grantor Trust, (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates
and (iii) written consent from the Controlling Class Representative (which
consent may be given or withheld in its sole discretion); and provided, further,
that the related Mortgage Loan Seller or the Column Performance Guarantor, as
applicable, may, at its option, repurchase or replace the entire
Cross-Collateralized Group without termination of the cross-collateralization.
If any Mortgage Loan Seller or the Column Performance Guarantor repurchases one
or more (but not all) of the Mortgage Loans constituting a Cross-Collateralized
Group as contemplated in this paragraph, in addition to the satisfaction of the
delivery of the items set forth in the immediately preceding sentence, the
Crossed Mortgage Loan Repurchase Criteria shall have been satisfied. The Master
Servicer shall advance all costs and expenses incurred by the Trustee and the
Master Servicer with respect to any Cross-Collateralized Group pursuant to this
paragraph, and such advances shall (i) constitute and be reimbursable as
Servicing Advances and (ii) be included in the calculation of Purchase Price for
the Mortgage Loan(s) to be repurchased or replaced. Neither the Master Servicer
nor the Special Servicer shall be liable to any Certificateholder or any other
party hereto if the cross-collateralization of any Cross-Collateralized Group
cannot be terminated as contemplated by this paragraph for any reason beyond the
control of the Master Servicer or the Special Servicer, as the case may be.
If the cross-collateralization of any Cross-Collateralized Group
of Mortgage Loans cannot be terminated as contemplated by the prior paragraph
for any reason (including, but not limited to, the failure of the related
Mortgage Loan Seller or the Column Performance Guarantor, as the case may be, to
satisfy any of the conditions set forth in the first proviso to the first
sentence of the prior paragraph), and if the related Mortgage Loan Seller or the
Column Performance Guarantor, as the case may be, has not elected to purchase
the entire affected Cross-Collateralized Group, then the affected
Cross-Collateralized Group will be treated as a single Mortgage Loan for
purposes of (i) determining whether the subject Breach or Document Defect is a
Material Breach or a Material Document Defect, as the case may be, and (ii)
applying remedies, including repurchase and substitution.
Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by a Mortgage Loan Seller or the Column Performance
Guarantor, as contemplated by this Section 2.03, the Master Servicer shall
direct the party effecting the substitution to deliver the related Mortgage File
to the Trustee, to certify that such substitute mortgage loan satisfies or such
substitute mortgage loans satisfy, as the case may be, all of the requirements
of the definition of "Qualifying Substitute Mortgage Loan" and to send such
certification to the Trustee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 2.03 if the Mortgage
Loan to be replaced was itself a Replacement Mortgage Loan, in which case,
absent a cure of the relevant Material Breach or Material Document Defect, the
affected Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each corresponding Deleted Mortgage Loan (if any) after the related
Due Date in June 2006 and received by the Master Servicer or the Special
Servicer on behalf of the Trust on or prior to the related date of substitution,
shall be part of the Trust Fund. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) and received by the Master Servicer or the
Special Servicer on behalf of the Trust after the related date of substitution,
shall not be part of the Trust Fund and are to be remitted by the Master
Servicer to the party effecting the related substitution promptly following
receipt.
If any Mortgage Loan is to be repurchased or replaced by a
Mortgage Loan Seller or the Column Performance Guarantor, as contemplated by
this Section 2.03, the Master Servicer shall direct such Mortgage Loan Seller or
the Column Performance Guarantor, as the case may be, to amend the Mortgage Loan
Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable,
the substitution of the related Replacement Mortgage Loan(s); and, upon its
receipt of such amended Mortgage Loan Schedule, the Master Servicer shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall
become part of the Trust Fund and be subject to the terms of this Agreement in
all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the
Master Servicer, the Special Servicer and/or the Trustee pursuant to this
Section 2.03(b), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Mortgage Loan Seller or the Column Performance Guarantor or reimbursed from a
Purchase Price Security Deposit Account or a Special Reserve Account or under a
Recording Omission Credit.
(c) Upon receipt of two copies of a Request for Release signed by
a Servicing Officer from the Master Servicer to the effect that the full amount
of the Purchase Price or Substitution Shortfall Amount (as the case may be) for
any Mortgage Loan repurchased or replaced by the related Mortgage Loan Seller or
the Column Performance Guarantor, as contemplated by this Section 2.03, has been
deposited in the Collection Account, and further, if applicable, upon receipt of
the Mortgage File for each Replacement Mortgage Loan (if any) to be substituted
for a Deleted Mortgage Loan, together with any certifications and/or opinions
required pursuant to Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Mortgage Loan to the party effecting the
repurchase/substitution or its designee and (ii) execute and deliver such
endorsements and instruments of release, transfer and/or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest in the party effecting the repurchase/substitution or its designee the
legal and beneficial ownership of the Deleted Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto) and the related Mortgage Loan Documents, and the Master
Servicer shall notify the affected Borrowers of the transfers of the Deleted
Mortgage Loan(s) and any Replacement Mortgage Loan(s). In connection with any
such repurchase or substitution by the related Mortgage Loan Seller or the
Column Performance Guarantor, each of the Master Servicer and the Special
Servicer shall deliver to the party effecting the repurchase/substitution or its
designee any portion of the related Servicing File, together with any Escrow
Payments, Reserve Funds and Additional Collateral, held by or on behalf of the
Master Servicer or the Special Servicer, as the case may be, with respect to the
Deleted Mortgage Loan, in each case at the expense of the party effecting the
repurchase/substitution. The Master Servicer shall notify the related B Loan
Holder of any repurchase regarding an A Loan. The reasonable "out-of-pocket"
costs and expenses, including reasonable attorneys' fees and expenses, incurred
by the Master Servicer, the Special Servicer and/or the Trustee pursuant to this
Section 2.03(c), to the extent not collected from the related Mortgage Loan
Seller or the Column Performance Guarantor or reimbursed from a Purchase Price
Security Deposit Account or a Special Reserve Account or under a Recording
Omission Credit, shall be reimbursable to each of them as Servicing Advances in
respect of the affected Mortgage Loan.
(d) If, on or after December 31, 2007, any Mortgage Loan Seller or
the Column Performance Guarantor receives notice of a Material Document Defect
with respect to any of its Mortgage Loans, which Material Document Defect
constitutes a Recording Omission, then such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, may, with the written consent of the
Controlling Class Representative, which consent may be granted or withheld in
its sole discretion, and written confirmation from each Rating Agency that the
following arrangement will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates, in lieu of repurchasing or replacing such
Mortgage Loan (as and to the extent contemplated by Section 2.03(b) above), but
in no event later than such repurchase would have to have been completed,
establish a Recording Omission Credit or a Recording Omission Reserve with the
Master Servicer; provided that if such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, has already established a Purchase
Price Security Deposit with respect to such Mortgage Loan in accordance with
Section 2.03(b) due to a Material Document Defect, which constitutes a Recording
Omission, the outstanding balance of such Purchase Price Security Deposit (when,
if applicable, combined with an additional amount being tendered by such
Mortgage Loan Seller or the Column Performance Guarantor) is not less than the
amount of the required Recording Omission Reserve and the establishment of a
Recording Omission Reserve will not result in an Adverse Rating event with
respect to any Class of Rated Certificates, then the existing Purchase Price
Security Deposit (when, if applicable, combined with an additional amount being
tendered by such Mortgage Loan Seller or the Column Performance Guarantor) shall
constitute the establishment of a Recording Omission Reserve with respect to
such Mortgage Loan for purposes of this Section 2.03(d). In furtherance of the
preceding sentence, (A) the Master Servicer shall establish one or more accounts
(collectively, the "Special Reserve Account") with respect to the subject
Mortgage Loan, each of which shall be an Eligible Account; (B) the Master
Servicer shall deposit any Recording Omission Reserve into the Special Reserve
Account within one Business Day after receipt; and (C) the Master Servicer shall
administer the Special Reserve Account in accordance with the terms of the
related Mortgage Loan Purchase Agreement. In the event that such Master Servicer
is entitled to apply any related Recording Omission Reserve or to draw upon any
related Recording Omission Credit to cover losses or expenses directly incurred
by the Trust as a result of a Recording Omission with respect to any Mortgage
Loan, then prior to making a Servicing Advance or incurring an Additional Trust
Fund Expense to cover any losses or expenses directly resulting from such
Recording Omission, such Master Servicer shall draw upon such related Recording
Omission Reserve (out of the Special Reserve Account) or upon such related
Recording Omission Credit, as the case may be, up to the amount of such losses
or expenses, and shall deposit the funds from such draw into the Collection
Account, and such amounts shall be deemed to be "Liquidation Proceeds" for all
purposes of this Agreement (other than Section 3.11(c) and shall be applied to
cover such losses or expenses. The Recording Omission Reserve or Recording
Omission Credit (or any unused balance thereof) delivered by any Mortgage Loan
Seller or the Column Performance Guarantor with respect to any Mortgage Loan
shall be released to such Mortgage Loan Seller or the Column Performance
Guarantor, as the case may be, by the Master Servicer upon the earlier of (i)
the curing of all Recording Omissions with respect to such Mortgage Loan and
(ii) the removal of such Mortgage Loan from the Trust Fund. The Special Reserve
Account, and any Recording Omission Reserves and Recording Omission Credits,
shall (a) be part of the Trust Fund but outside either Trust REMIC or the
Grantor Trust and (b) be an "outside reserve fund" within the meaning of the
REMIC Provisions, beneficially owned by the related Mortgage Loan Seller or the
Column Performance Guarantor, as applicable, for federal income tax purposes,
which shall be taxable on all reinvestment income, if any, thereon. The
investment of funds in the Special Reserve Account shall be governed by the
terms of the respective Mortgage Loan Purchase Agreements.
(e) If the Mortgage Loan Seller disputes that a Material Document
Defect or Material Breach exists with respect to a Mortgage Loan or otherwise
refuses (i) to effect a correction or cure of such Material Document Defect or
Material Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or
(iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan,
each in accordance with the related Mortgage Loan Purchase Agreement, then
provided that (i) at least the applicable Initial Resolution Period has expired
and (ii) the Mortgage Loan is then in default and is then a Specially Serviced
Mortgage Loan, the Special Servicer may, subject to the Servicing Standard,
modify, work-out or foreclose, sell or otherwise liquidate (or permit the
liquidation of) the Mortgage Loan pursuant to the terms of this Agreement, while
pursuing the repurchase claim, and such action shall not be a defense to the
repurchase claim or alter the applicable Purchase Price (it being understood and
agreed that the foregoing is not intended to otherwise delay the actions of the
Special Servicer with respect to a Specially Serviced Mortgage Loan).
The related Mortgage Loan Seller shall be notified promptly and in
writing by the Special Servicer of any offer that it receives to purchase an REO
Property as to which there is any alleged Material Document Defect or Material
Breach. Upon the receipt of such notice by the related Mortgage Loan Seller, the
related Mortgage Loan Seller shall then have the right to repurchase such REO
Property from the Trust at a purchase price equal to the amount of such offer.
The related Mortgage Loan Seller shall have three (3) Business Days to purchase
such REO Property from the date that it was notified of such offer. The Special
Servicer shall be obligated to provide the related Mortgage Loan Seller with the
most recent appraisal or other third-party reports relating to such REO Property
within its possession to enable the related Mortgage Loan Seller to evaluate
such REO Property. Any sale of a Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of an REO Property, to a Person other than the related
Mortgage Loan Seller shall be (i) without recourse of any kind (either expressed
or implied) by such Person against the related Mortgage Loan Seller or, if
applicable, the Column Performance Guarantor and (ii) without representation or
warranty of any kind (either expressed or implied) by the related Mortgage Loan
Seller or, if applicable, the Column Performance Guarantor to or for the benefit
of such person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim against
the related Mortgage Loan Seller for repurchase of the subject Mortgage Loan or
REO Property. The provisions of this Section 2.03 regarding remedies against the
related Mortgage Loan Seller for a Material Breach or Material Document Defect
with respect to any Mortgage Loan shall also apply to the related REO Property.
If the related Mortgage Loan Seller fails to correct or cure the
Material Document Defect or Material Breach or purchase the REO Property, then
the provisions above regarding notice of offers related to such REO Property and
the related Mortgage Loan Seller's right to purchase such REO Property shall
apply. If a court of competent jurisdiction issues a final order that the
related Mortgage Loan Seller is or was obligated to repurchase the related
Mortgage Loan or REO Property or the related Mortgage Loan Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to this
Agreement, the related Mortgage Loan Seller will be obligated to pay to the
Trust the amount, if any, by which the applicable Purchase Price exceeds any
Liquidation Proceeds received upon such liquidation (including those arising
from any sale to the related Mortgage Loan Seller); provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys' fees) related thereto.
(f) The related Mortgage Loan Purchase Agreement and, in the case
of Column Mortgage Loans, the Column Performance Guarantee, provide the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If, in connection with any unremedied
Material Breach or Material Document Defect, a Mortgage Loan Seller (or, in the
case of a Column Mortgage Loan, each of Column and the Column Performance
Guarantor) defaults on its obligations to repurchase or replace, to post cash or
a letter of credit with respect to, or to reimburse the Trust for certain costs
and expenses relating to, any Mortgage Loan as contemplated by this Section
2.03, the Master Servicer shall (and the Special Servicer may) promptly notify
the Trustee, and the Trustee shall notify the Certificateholders. Thereafter,
the Master Servicer shall (and the Special Servicer may) take such actions on
behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations (and if the Master Servicer (or the Special
Servicer) is notified or otherwise becomes aware of a default on the part of any
Mortgage Loan Seller in respect of its obligations under the second paragraph of
Section 2(c) of the related Mortgage Loan Purchase Agreement, the Master
Servicer shall (and the Special Servicer may) also take such actions on behalf
of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer (or, if applicable, the Special
Servicer) shall determine are in the best interests of the Certificateholders
(taken as a collective whole). Any and all reasonable "out-of-pocket" costs and
expenses incurred by the Master Servicer, the Special Servicer and/or the
Trustee pursuant to this Section 2.03(f), including, reasonable attorney's fees
and expenses, to the extent not collected from the related Mortgage Loan Seller
or the Column Performance Guarantor or reimbursed from a Purchase Price Security
Deposit Account or a Special Reserve Account or under a Recording Omission
Credit, shall constitute Servicing Advances in respect of the affected Mortgage
Loan.
(g) If the applicable Mortgage Loan Seller or the Column
Performance Guarantor (in the case of a Column Mortgage Loan), incurs any
expense in connection with the curing of any Breach which also constitutes a
default under the related Mortgage Loan, such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, shall have a right, and shall be
subrogated to the rights of the Trustee, as the holder of such Mortgage Loan, to
recover the amount of such expenses from the related Borrower; provided,
however, that the rights of such Mortgage Loan Seller or the Column Performance
Guarantor, as the case may be, pursuant to this Section 2.03(g) shall be junior,
subject and subordinate to the rights of the Trust Fund, the Master Servicer and
the Special Servicer to recover amounts owed by the related Borrower 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 Trust Fund, the
Master Servicer or the Special Servicer allocable to such Mortgage Loan;
provided, further, that if and to the extent that such expenses of such Mortgage
Loan Seller or the Column Performance Guarantor, as the case may be, in
connection with such Mortgage Loan exceed five percent of the then outstanding
principal balance of such Mortgage Loan, then its rights to reimbursement
pursuant to this Section 2.03(g) with respect to such Mortgage Loan and such
excess expenses shall not be exercised until the payment in full of such
Mortgage Loan (as such Mortgage Loan may be amended or modified pursuant to the
terms of this Agreement). Notwithstanding any other provision of this Agreement
to the contrary, the Master Servicer or, with respect to a Specially Serviced
Mortgage Loan, the Special Servicer, shall not have any obligation pursuant to
this Agreement to collect such reimbursable amounts on behalf of such Mortgage
Loan Seller or the Column Performance Guarantor, as the case may be; provided,
however, that the preceding clause shall not operate to prevent the Master
Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special
Servicer, from using reasonable efforts, exercised in its sole discretion, to
collect such amounts to the extent consistent with the Servicing Standard, so
long as the Master Servicer or, with respect to a Specially Serviced Mortgage
Loan, the Special Servicer determines in the exercise of its sole discretion
consistent with the Servicing Standard that its actions to collect such amounts
will not impair the Master Servicer's and/or the Special Servicer's collection
and recovery of principal, interest and other sums due with respect to the
related Mortgage Loan and, if applicable, B Loan, which would otherwise be
payable to the Trust, the Master Servicer, the Special Servicer, the Trustee or
the Certificateholders and, if applicable, the B Loan Holder, pursuant to the
terms of this Agreement, provided, that in no event will the failure of Borrower
to pay such reimbursable amounts result in the Borrower being called in default
under the Mortgage Loan, either the Master Servicer or the Special Servicer
accelerating the Mortgage Loan or taking any enforcement action beyond making
demand for such reimbursable amount but, provided, further, in the event of the
Special Servicer otherwise commencing enforcement action with respect to a
default other than the Borrower's failure to pay such reimbursable amounts, the
Special Servicer may include such reimbursable amounts in the amount sought from
the Borrower in such enforcement action but payment of any such reimbursable
amounts shall be subordinate to the payment of all other sums owed by the
Borrower under the Mortgage Loan and payable to the Trust, the Master Servicer,
the Special Servicer or the Trustee. Any amounts reimbursed to a Mortgage Loan
Seller or the Column Performance Guarantor from either Trust REMIC with respect
to any amounts paid from the Purchase Price Security Deposit Account, Special
Reserve Account or any Recording Omission Reserve or Recording Omission Credits
shall be treated as distributions from such Trust REMIC to such Mortgage Loan
Seller or the Column Performance Guarantor, as applicable, as beneficial owners
of such Purchase Price Security Deposit Account, Special Reserve Account,
Recording Omission Reserve or Recording Omission Credit, as applicable.
Section 2.04 Representations and Warranties of the Depositor
(a) The Depositor hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, 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 Depositor's execution and delivery of, performance under,
and compliance with this Agreement, will not violate the Depositor'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, which default
or breach, in the good faith and reasonable judgment of the Depositor, 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.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions involving the Depositor
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, receivership, 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, performance under and compliance with 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
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) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and sale of
the Certificates by the Underwriters, and (C) any recordation of the
assignments of Mortgage Loan Documents to the Trustee pursuant to Section
2.01(e), which has not yet been completed.
(vii) The Depositor's transfer of the Original 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.
(viii) The Depositor is not transferring the Original 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 Original
Mortgage Loans to the Trustee, pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Original Mortgage
Loans to the Trustee, pursuant to Section 2.01(b), 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) 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.
(xiv) Immediately prior to the transfer of the Original Mortgage
Loans to the Trustee for the benefit of the Certificateholders pursuant
to this Agreement, the Depositor had such right, title and interest in
and to each Original Mortgage Loan as was transferred to it by the
related Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement. The Depositor has not transferred any of its right,
title and interest in and to the Original Mortgage Loans to any Person
other than the Trustee.
(xv) The Depositor is transferring all of its right, title and
interest in and to the Original Mortgage Loans to the Trustee for the
benefit of the Certificateholders free and clear of any and all liens,
pledges, charges, security interests and other encumbrances created by or
through the Depositor.
(xvi) Except for any actions that are the express responsibility
of another party hereunder or under any Mortgage Loan Purchase Agreement,
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 all
of its right, title and interest in and to the Original Mortgage Loans by
the Depositor to the Trustee.
(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 remains in existence. Upon discovery by any party
hereto of any breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
Section 2.05 Representations and Warranties of the Master
Servicer
(a) The Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and the Master Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, 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, which
default or breach, in the reasonable judgment of the Master Servicer, 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.
(iii) The Master Servicer has the full corporate power and
authority to enter into and consummate all transactions involving the
Master Servicer 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 bankruptcy, insolvency, reorganization, receivership,
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 Master Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with 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 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 consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the Master Servicer to perform its obligations under
this Agreement.
(vii) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer the outcome
of which, in the Master Servicer's reasonable judgment, would prohibit
the Master Servicer from entering into this Agreement or that, in the
Master Servicer's 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.
(viii) The Master Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Mortgage Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) 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 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(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 2.06 Representations and Warranties of the Special
Servicer
(a) The Special Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and the Special Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The Special Servicer's execution and delivery of, performance
under and compliance with this Agreement 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
instrument to which it is a party or by which it is bound, which default
or breach, in the reasonable judgment of the Special Servicer, 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.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions involving the
Special Servicer 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, receivership,
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, performance under 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 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 consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the Special Servicer to perform its obligations under
this Agreement.
(vii) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer the outcome
of which, in the Special Servicer's reasonable judgment, would prohibit
the Special Servicer from entering into this Agreement or that, in the
Special Servicer's 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.
(viii) The Special Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(ix) As of the Closing Date, the Special Servicer is not a party
to any Sub-Servicing Agreement providing for the performance of duties of
the Special Servicer by any Sub-Servicers with respect to any of the
Mortgage Loans or REO Properties.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) 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 2.06(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.06(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 2.07 Reserved.
Section 2.08 Reserved.
Section 2.09 Representations,Warranties and Covenants of the
Trustee
The Trustee hereby represents and warrants to the Depositor, the
Master Servicer and the Special Servicer and for the benefit of the
Certificateholders and the B Loan Holders, 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 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 Trustee 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 Trustee, enforceable against the Trustee 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 the rights of creditors of
banks specifically and (b) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(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 which 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;
and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
(b) The representations, warranties and covenants of the Trustee
set forth in Section 2.09(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 remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, the party discovering such breach shall give prompt written
notice thereof 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 2.09(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.09(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 2.10 Issuance of Uncertificated Lower-Tier Interests;
Execution of Certificates
(a) The Trustee hereby acknowledges the assignment to it of the
Mortgage Loans and the delivery of the Mortgage Files and fully executed
original counterparts of the Mortgage Loan Purchase Agreements, together with
the assignment to it of all other assets included in the Trust Fund.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee acknowledges the issuance of the Uncertificated Lower-Tier Interests to
the Depositor and the Class LR and Class V Certificates to or upon the order of
the Depositor, in exchange for the Mortgage Loans, receipt of which is hereby
acknowledged, and immediately thereafter, the Trustee acknowledges that,
pursuant to the written request of the Depositor executed by an officer of the
Depositor, it has executed, authenticated and, upon the order of the Depositor,
shall deliver, (i) the Regular Certificates and the Class R Certificates in
exchange for the Uncertificated Lower-Tier Interests and (ii) the Class V
Certificates in exchange for the right to receive Post-ARD Additional Interest,
and the Depositor hereby acknowledges the receipt by it or its designees, of all
such Certificates.
Section 2.11 Acceptance of Grantor Trust by Trustee; Issuance of
the Class V Certificates
(a) It is the intention of the parties hereto that the segregated
pool of assets consisting of any collections of Post-ARD Additional Interest
received on the ARD Mortgage Loans constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
the "Grantor Trust." The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of the Grantor Trust and
declares that it holds and will hold such assets in trust for the exclusive use
and benefit of all present and future Holders of the Class V Certificates.
Concurrently with the assignment to it of the assets included in the Grantor
Trust, the Trustee shall execute, and the Certificate Registrar shall
authenticate and deliver, to or upon the order of the Depositor, the Class V
Certificates in authorized denominations evidencing the entire beneficial
ownership of the Grantor Trust. The rights of the Holders of the Class V
Certificates to receive distributions from the proceeds of Grantor Trust, and
all ownership interests of such Holders in and to such distributions, shall be
as set forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans
(a) The Master Servicer shall be the Master Servicer with respect
to all the Trust Assets and, as such, subject to Section 3.21, shall service and
administer such of the Trust Assets as constitute Performing Mortgage Loans and
shall continue to collect such information and prepare such reports to the
Trustee, and shall render such other incidental services, as shall be required
of such Master Servicer hereunder with respect to such of the Trust Assets as
constitute Specially Serviced Mortgage Loans and REO Properties. The Special
Servicer shall be the Special Servicer with respect to all the Trust Assets and,
as such, subject to Section 3.21, shall service and administer such of the Trust
Assets as constitute Specially Serviced Mortgage Loans and REO Properties and
shall render such incidental services as are required of such Special Servicer
with respect to such of the Trust Assets as constitute Performing Mortgage
Loans.
(b) The Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans and any REO Properties that it is obligated to
service and administer pursuant to this Agreement, for the benefit of the
Certificateholders (as a collective whole), in accordance with: (i) any and all
applicable laws; (ii) the express terms of this Agreement and the respective
Mortgage Loan Documents (and, in the case of each A/B Loan Pair, the related A/B
Intercreditor Agreement); and (iii) to the extent consistent with the foregoing,
the Servicing Standard. Subject to the foregoing, the Master Servicer and
Special Servicer shall each have full power and authority, acting alone or
through 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, the Master Servicer
(with respect to those Performing Mortgage Loans that it is obligated to service
and administer pursuant to this Agreement) and Special Servicer (with respect to
Specially Serviced Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement), in its own name or in the name of the Trustee, is
hereby authorized and empowered by the Trustee and obligated to execute and
deliver, on behalf of the Certificateholders, any affected B Loan Holder and the
Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and other related collateral; (ii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, or of partial or full defeasance and all other comparable
instruments; and (iii) subject to Sections 3.08, 3.20 and 3.24, any and all
assumptions, modifications, waivers, substitutions, extensions, amendments and
consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of any Master Servicer or Special Servicer, furnish, or
cause to be so furnished, to such Master Servicer or Special Servicer, as
appropriate, any limited powers of attorney and other documents necessary or
appropriate to enable the Master Servicer or Special Servicer, as the case may
be, to carry out its servicing and administrative duties hereunder; provided,
however, that the Trustee shall not be held liable for any negligence with
respect to, or misuse of any such power of attorney by any Master Servicer or
Special Servicer; provided, further, 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 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 and, unless they are the same Person, each other
under this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
(d) In the event that there shall occur an A/B Material Default
with respect to any A/B Loan Pair, and for so long as such A/B Material Default
shall be continuing, the Master Servicer and/or the Special Servicer, as
applicable, shall be obligated to service, subject to the terms and conditions
of the related A/B Intercreditor Agreement, the related B Loan, on behalf of the
related B Loan Holder, and all references herein to "Mortgage Loan" (and, if the
related A Loan is a Specially Serviced Mortgage Loan, all references herein to
"Specially Serviced Mortgage Loan"), other than provisions pertaining to the
making of Advances, shall include a B Loan that is being serviced under this
Agreement.
Section 3.02 Collection of Mortgage Loan Payments
(a) The Master Servicer (with respect to Performing Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall undertake reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans and shall follow such
collection procedures as are consistent with applicable law, the express terms
of this Agreement, the related Mortgage Loan Documents, in the case of any B
Loan, the related A/B Intercreditor Agreement and, to the extent consistent with
the foregoing, the Servicing Standard; provided that neither such Master
Servicer nor such Special Servicer shall, with respect to any ARD Mortgage Loan
after its Anticipated Repayment Date, take any enforcement action with respect
to the payment of Post-ARD Additional Interest (other than the making of
requests for its collection), unless (i) the taking of an enforcement action
with respect to the payment of other amounts due under such Mortgage Loan is, in
the reasonable judgment of the Special Servicer, and without regard to such
Post-ARD Additional Interest, also necessary, appropriate and consistent with
the Servicing Standard or (ii) all other amounts due under such Mortgage Loan
have been paid, the payment of such Post-ARD Additional Interest has not been
forgiven in accordance with Section 3.20 and, in the reasonable judgment of the
Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated Advance Interest.
Consistent with the foregoing, the Master Servicer (as to Performing Mortgage
Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans) each
may waive any Default Charges in connection with any specific delinquent payment
on a Mortgage Loan it is obligated to service hereunder; provided that, to the
extent the Master Servicer (as to Performing Mortgage Loans) and the Special
Servicer (as to Specially Serviced Mortgage Loans) waives any Default Charges,
any outstanding interest on Advances and Additional Trust Fund Expenses with
respect to the related Mortgage Loan that would otherwise have been paid out of
such Default Charges shall be paid out of the Additional Master Servicing
Compensation payable to such Master Servicer or Additional Special Servicing
Compensation payable to such Special Servicer, as the case may be, with respect
to that Mortgage Loan; and provided, further, that if no Additional Master
Servicing Compensation or Additional Special Servicing Compensation, as
applicable, is available to offset the outstanding interest on advances or
inspection costs that would otherwise be offset by the Default Charges, then the
Master Servicer or the Special Servicer, as the case may be, shall not waive
such Default Charges without the consent of the Controlling Class
Representative.
(b) At least ninety days prior to the maturity date of each
Balloon Mortgage Loan, the Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the Special Servicer)
and shall request confirmation that the Balloon Payment will be paid by such
maturity date.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts
(a) The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), in which all Escrow Payments received by it
with respect to the Mortgage Loans shall be deposited and retained. The Master
Servicer shall maintain the Servicing Accounts with respect to the Mortgage
Loans (including any such Mortgage Loans that are Specially Serviced Mortgage
Loans). Subject to any terms of the related Mortgage Loan Documents and the
terms of any related A/B Intercreditor Agreement that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect the payment of real estate taxes, assessments, insurance
premiums (including, premiums on any Environmental Insurance Policy), ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) to reimburse such Master Servicer, such Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made thereby
with respect to such Mortgage Loan to cover any of the items described in the
immediately preceding clause (i); (iii) to refund to the related Borrower any
sums as may be determined to be overages; (iv) to pay interest or other income,
if required and as described below, to the related Borrower on balances in the
Servicing Account (or, if and to the extent not payable to the related Borrower
to pay such interest or other income (up to the amount of any Net Investment
Earnings in respect of such Servicing Account for each Collection Period) to the
Master Servicer); (v) after an event of default, to pay the principal of,
accrued interest on and any other amounts payable with respect to such Mortgage
Loan; or (vi) to clear and terminate the Servicing Account at the termination of
this Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the Borrowers interest and other income, if any, earned on
the investment of funds in Servicing Accounts maintained thereby, if and to the
extent required by law or the terms of the related Mortgage Loan Documents. 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.
Promptly after any Escrow Payments are received by the Special Servicer from any
Borrower, and in any event within two Business Days after any such receipt, such
Special Servicer shall remit such Escrow Payments to the Master Servicer for
deposit in the applicable Servicing Account(s).
(b) The Master Servicer shall as to each Mortgage Loan (including
each Specially Serviced Mortgage Loan) (i) maintain accurate records with
respect to the related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof and (ii) use reasonable efforts consistent with the Servicing Standard
to obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, such Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan Documents; provided that if such Mortgage Loan does not require
the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the Master Servicer and the Special Servicer shall, as to those Mortgage
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, use efforts consistent with the Servicing Standard
to enforce the requirement of the related Mortgage that the Borrower make
payments in respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, but subject to
Section 3.11(h), the Master Servicer shall make a Servicing Advance with respect
to each Mortgaged Property (including each Mortgaged Property relating to a
Specially Serviced Mortgage Loan and each Mortgaged Property that secures an A/B
Loan Pair, provided that the Master Servicer shall not be obligated to make such
a Servicing Advance with respect to an A/B Loan Pair after the principal balance
of the related A Loan is zero) all such funds as are necessary for the purpose
of effecting the timely payment of (i) real estate taxes, assessments and other
similar items, (ii) ground rents (if applicable), and (iii) premiums on
Insurance Policies (including, premiums on any Environmental Insurance Policy),
in each instance prior to the applicable penalty or termination date if and to
the extent that (x) Escrow Payments (if any) collected from the related Borrower
are insufficient to pay such item when due, and (y) the related Borrower has
failed to pay such item on a timely basis; provided that, in the case of amounts
described in the preceding clause (i), the Master Servicer shall not make a
Servicing Advance of any such amount if such Master Servicer reasonably
anticipates (in accordance with the Servicing Standard) that such amounts will
be paid by the related Borrower on or before the applicable penalty date, in
which case such Master Servicer shall use its best efforts consistent with the
Servicing Standard to confirm whether such amounts have been paid and shall make
a Servicing Advance of such amounts, if necessary, not later than five Business
Days following confirmation by such Master Servicer that such amounts have not
been paid by the applicable penalty date. All such Advances shall be
reimbursable in the first instance from related collections from the Borrowers
and further as provided in Section 3.05(a). No costs incurred by the Master
Servicer in effecting the payment of real estate taxes, assessments and, if
applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the respective unpaid principal balances or
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit; provided that this sentence shall
not be construed to limit the rights of such Master Servicer on behalf of the
Trust to enforce any obligations of the related Borrower under such Mortgage
Loan.
If the Master Servicer is required under any provision of this
Agreement to make a Servicing Advance, but it does not do so when such Advance
is required to be made, the Trustee shall, if it 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 three Business Days after such notice is given to the Master
Servicer, then (subject to Section 7.05) the Trustee shall, within one Business
Day thereafter, make such Servicing Advance.
(d) In connection with its recovery of any Servicing Advance out
of the Collection Account pursuant to clauses (v) or (vi) of Section 3.05(a),
from an A/B Loan Pair Custodial Account pursuant to Section 3.04 or from a
Servicing Account pursuant to Section 3.03(a)(ii), the Master Servicer, the
Special Servicer and the Trustee shall each be entitled to receive, first out of
any Default Charges with respect to the related Mortgage Loan or REO Mortgage
Loan, and then out of any other amounts then on deposit in the Collection
Account, interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of such Servicing Advance from and including the date made to, but
not including, the date of reimbursement; provided that any such interest with
respect to any Servicing Advances made or deemed made with respect to any
related B Loan or any successor REO B Loan with respect thereto that is not so
payable out of related Penalty Charges, shall be payable, after such Servicing
Advance is reimbursed, out of any other collections on such Mortgage Loan or REO
Mortgage Loan, as the case may be, on deposit in the A/B Loan Pair Custodial
Account (but in no event out of the Trust Fund) (except that this provision is
in no way intended to limit any rights that the Master Servicer, the Special
Servicer or the Trustee may have to receive payment for such interest on such
Servicing Advances from the related B Loan Holder under the related
Intercreditor Agreement); and provided, further, that any such interest earned
on any Servicing Advances made with respect to either Mortgage Loan of an A/B
Loan Pair or with respect to any REO Property related to an A/B Loan Pair shall
be payable out of the related A/B Loan Pair Custodial Account, to the maximum
extent permitted by the related Intercreditor Agreement, before being paid out
of general collections on the Mortgage Pool on deposit in the Collection
Account; and provided, further, that the Master Servicer shall not be entitled
to interest on any Servicing Advance made thereby to the extent a payment that
may be applied to reimburse such Servicing advance is received but is being held
by or on behalf of the Master Servicer in suspense. The Master Servicer shall
reimburse itself, the Special Servicer or the Trustee, as the case may be, for
any outstanding Servicing Advance made by the Master Servicer, the Special
Servicer or the Trustee as soon as practically possible after funds available
for such purpose are deposited in the Collection Account or, if applicable, the
related A/B Loan Pair Custodial Account; provided that, upon a determination
that a previously made Servicing Advance is a Nonrecoverable Servicing Advance
with respect to any Trust Mortgage Loan or REO Trust Mortgage Loan the Master
Servicer may reimburse itself, the Special Servicer or the Trustee, as
applicable, immediately from general collections in the Collection Account (such
reimbursement to be deemed made first out of amounts distributable as
principal). Notwithstanding the foregoing, instead of obtaining reimbursement
out of general collections on the Mortgage Pool immediately, if and to the
extent that there are insufficient amounts that would otherwise be distributable
as principal to fully reimburse such Nonrecoverable Servicing Advance, the
Master Servicer, the Special Servicer or the Trustee, as applicable, may, in its
sole discretion, elect to obtain reimbursement for such Nonrecoverable Servicing
Advance over a period of time (not to exceed 12 months), with interest thereon
at the Reimbursement Rate (except that at any time after such a determination to
obtain reimbursement over time in accordance with this proviso, the Master
Servicer, the Special Servicer or the Trustee, as applicable, may, in its sole
discretion, decide to obtain reimbursement from general collections on the
Mortgage Pool immediately), provided, however, that the Master Servicer, the
Special Servicer or the Trustee, as applicable, must first reimburse itself to
the extent of funds in the Collection Account otherwise distributable as
principal. The fact that a decision to recover any Nonrecoverable Servicing
Advance over time, or not to do so, benefits some Classes of Certificateholders
to the detriment of other Classes shall not constitute a violation of the
Servicing Standard by the Master Servicer or the Special Servicer or a breach of
any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of
any other contractual obligation owed to the Certificateholders by any party to
this Agreement.
(e) The Master Servicer shall establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), in which all Reserve
Funds, if any, received by it with respect to the Mortgage Loans as to which it
is the Master Servicer shall be deposited and retained. As and to the extent
consistent with the Servicing Standard and the related Mortgage Loan Documents,
the Master Servicer may make withdrawals of amounts so deposited, and draws
under any Letter of Credit delivered in lieu of Reserve Funds, to pay for, or to
reimburse the related Borrower in connection with, the costs associated with the
related tenant improvements, leasing commissions, repairs, replacements, capital
improvements and/or environmental testing and remediation, litigation and/or
other special expenses at or with respect to the related Mortgaged Property for
which such Reserve Funds were intended or such Letter of Credit was delivered
and, in the case of a Reserve Account constituting debt service reserve
accounts, to apply amounts on deposit therein in respect of principal and
interest on the related Mortgage Loan. In addition, as and to the extent
consistent with the Servicing Standard and the related Mortgage Loan Documents,
the Master Servicer may make withdrawals of amounts so deposited, and draws
under any Letter of Credit so delivered, to prepay the Mortgage Loan in the
event certain leasing or other economic criteria are not satisfied at the
related Mortgaged Property (but only if such prepayment is required by the
related Mortgage Loan Documents or continuing to hold such funds or Letter of
Credit as Additional Collateral is not consistent with the Servicing Standard),
to pay amounts due and owing under the Mortgage Loan following an event of
default, or to release such amounts to the related Borrower or otherwise apply
such amounts for any other appropriate purpose in the event that such criteria
are satisfied, and the Master Servicer may return any Letter of Credit so
delivered to the related Borrower; provided that, notwithstanding the foregoing,
such Master Servicer shall not release any Earn-Out Reserve Funds, or return any
related Letter of Credit delivered in lieu of Earn-Out Reserve Funds, to the
related Borrower, unless and until: (i) such Master Servicer has so notified the
Special Servicer in writing and has provided such Special Servicer with any
written or electronic information in such Master Servicer's possession regarding
such Mortgage Loan or the related Mortgaged Property that such Special Servicer
may reasonably request within ten Business Days of receiving such written
notice; and (ii) subject to Section 3.24, the Special Servicer has consented to
such release of any such Earn-Out Reserve Funds or return of any related Letter
of Credit (such consent to be given or withheld in accordance with the Servicing
Standard and to be deemed given if the Special Servicer does not object in
writing to such release of any such Earn-Out Reserve Funds or return of any such
Letter of Credit within fifteen (15) Business Days after receiving such
additional information from the Master Servicer (or, if it did not request
additional information, within ten Business Days after receiving such notice).
Subject to the terms of the related Mortgage Loan Documents, each Reserve
Account shall be an Eligible Account. Interest and other income, if any, earned
on funds on deposit in any Reserve Account held by the Master Servicer (to the
extent of any Net Investment Earnings with respect to such Reserve Account for
any Collection Period), shall be for the benefit of and payable to such Master
Servicer, unless otherwise required to be paid to the related Borrower by law or
the terms of the related Mortgage Loan. If the Master Servicer shall deposit in
a Reserve Account maintained by it any amount not required to be deposited
therein, it may at any time withdraw such amount from such Reserve Account, any
provision herein to the contrary notwithstanding. Any out-of-pocket expenses
incurred by the Master Servicer to enable such Master Servicer to make any draw
under any Letter of Credit shall constitute a Servicing Advance, and such Master
Servicer shall make reasonable efforts to recover such expenses from the related
Borrower to the extent the Borrower is required to pay such expenses under the
terms of the related Mortgage Loan.
(f) To the extent an operations and maintenance plan is required
to be established and executed pursuant to the terms of a Mortgage Loan, the
Master Servicer shall request from the Borrower written confirmation thereof
within a reasonable time after the later of the Closing Date and the date as of
which such plan is required to be established or completed. To the extent any
other action or remediation with respect to environmental matters is required to
have been taken or completed pursuant to the terms of a Mortgage Loan, the
Master Servicer shall request from the Borrower written confirmation of such
action and remediations within a reasonable time after the later of the Closing
Date and the date as of which such action or remediations are required to have
been taken or completed. To the extent that a Borrower shall fail to promptly
respond to any inquiry described in this Section 3.03(e), the Master Servicer
shall notify the Trustee, the Special Servicer and the Controlling Class
Representative. The Master Servicer shall promptly notify the Trustee, the
Special Servicer and the Controlling Class Representative if the Master Servicer
shall determine that any Borrower has failed to perform its obligations under
the related Mortgage Loan in respect of environmental matters. (g) Subject to
applicable law and the terms of the related Mortgage Loan Documents, funds in
the Servicing Accounts and the Reserve Accounts may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06.
Section 3.04 Collection Accounts, Distribution Account, Interest
Reserve Account and Excess Liquidation Proceeds
Account
(a) The Master Servicer shall segregate and hold all funds
collected and received by it in connection with the Mortgage Pool separate and
apart from its own funds and general assets. In connection therewith, the Master
Servicer shall establish and maintain one or more segregated accounts
(collectively, the "Collection Account"), in which the funds described below are
to be deposited and held on behalf of the Trustee in trust for the benefit of
the Certificateholders. Each account that constitutes the Collection Account
shall be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the applicable Collection Account, within one Business Day of
receipt by it (in the case of payments by Borrowers or other collections on the
Mortgage Loans) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of such Master Servicer in respect
of the Mortgage Pool subsequent to the Closing Date (other than in respect of
scheduled payments of principal and interest due and payable on the Mortgage
Loans on or before their respective Due Dates in June 2006 (or, in the case of a
Replacement Mortgage Loan, on or before the related date of substitution), which
payments shall be delivered promptly to the related Mortgage Loan Seller or its
designee, with negotiable instruments endorsed as necessary and appropriate
without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans and
any B Loan, including Default Interest and Post-ARD Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Mortgage Loans together with any
amounts representing recoveries of Workout-Delayed Reimbursement Amounts
or Nonrecoverable Advances in respect of the related Mortgage Loans;
(v) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.06 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 or master force
placed hazard insurance policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c) or from an A/B Loan Pair Custodial Account
pursuant to Section 3.04(f);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Borrower specifically to cover items for which a
Servicing Advance has been made or that represent a recovery of property
protection expenses from a Borrower;
(ix) any amounts received pursuant to Section 3.18 in connection
with the liquidation of a Defective Mortgage Loan or pursuant to Section
3.09 in connection with the liquidation of a Defaulted Mortgage Loan;
(x) any amounts paid by a Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, in connection with the
repurchase or substitution of a Mortgage Loan by such party pursuant to
Section 2.03;
(xi) any amounts paid to purchase or otherwise acquire all the
Mortgage Loans and any REO Properties in connection with the termination
of the Trust Fund pursuant to Section 9.01; and
(xii) any amounts paid by the B Loan Holder or mezzanine lender in
connection with any purchase option exercised pursuant to the terms of
the A/B Intercreditor Agreement, or related intercreditor agreement, as
applicable.
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Borrowers in the nature of Escrow Payments, assumption fees,
assumption application fees, defeasance fees, earn-out fees, extension fees,
modification fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and other fees and amounts
collected from Borrowers that constitute Additional Master Servicing
Compensation and/or Additional Special Servicing Compensation, need not be
deposited by the Master Servicer in its Collection Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation. If the Master Servicer shall deposit in its
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from such Master Servicer's Collection Account,
any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) of the first paragraph of this Section 3.04(a) with
respect to any Mortgage Loan, the Special Servicer shall promptly, but in no
event later than one Business Day after receipt, remit such amounts to the
Master Servicer for deposit into the Collection Account, unless such Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. With respect
to any such amounts paid by check to the order of such Special Servicer, such
Special Servicer shall endorse such check to the order of the Master Servicer
(in its capacity as such), without recourse, representation or warranty, 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. Any such amounts received by the Special Servicer with respect to
an REO Property shall be deposited by such Special Servicer into the REO Account
and remitted to the Master Servicer for deposit into such Master Servicer's
Collection Account pursuant to Section 3.16(c) (or, if such REO Property relates
to an A/B Loan Pair, into the related A/B Loan Pair Custodial Account).
(b) The Trustee shall establish and maintain one or more
segregated accounts (collectively, the "Distribution Account"), to be held in
trust for the benefit of the Certificateholders. Each account that constitutes
the Distribution Account shall be an Eligible Account. By 1:00 p.m. (New York
City time) on each Master Servicer Remittance Date, the Master Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to the Master Servicer's Master
Servicer Remittance Amount for such Master Servicer Remittance Date. Immediately
upon deposit of any Master Servicer Remittance Amount for any Master Servicer
Remittance Date into the Distribution Account, any portion thereof that
represents any Post-ARD Additional Interest related to the ARD Mortgage Loans
shall be deemed to have been deposited into the Post-ARD Additional Interest
Distribution Account, and the remaining portion thereof shall be deemed to have
been deposited into the Lower-Tier Distribution Account. In addition, the Master
Servicer shall, as and when required hereunder, deliver to the Trustee for
deposit in the Lower-Tier Distribution Account any P&I Advances and Compensating
Interest Payments required to be made by such Master Servicer hereunder.
Furthermore, any amounts paid by any party hereto to indemnify the Trust Fund
pursuant to any provision hereof shall be delivered to the Trustee for deposit
in the Lower-Tier Distribution Account. The Trustee shall, upon receipt, deposit
in the Lower-Tier Distribution Account any and all amounts received or, pursuant
to Section 4.03, advanced by the Trustee that are required by the terms of this
Agreement to be deposited therein. As and when required pursuant to Section
3.05(c), the Trustee shall transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans from the Interest Reserve Account to the
Lower-Tier Distribution Account. The Trustee shall also deposit in the
Distribution Account any amounts required to be deposited by the Trustee
pursuant to Section 3.06 in connection with losses incurred with respect
Permitted Investments of funds held in the Distribution Account. Furthermore, as
and when required pursuant to Section 3.05(d), the Trustee shall transfer monies
from the Excess Liquidation Proceeds Account to the Lower-Tier Distribution
Account. If the Trustee shall deposit in the Lower-Tier Distribution Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Lower-Tier Distribution Account, any provision herein to the
contrary notwithstanding.
On each Distribution Date, the Trustee shall deposit or be deemed
to have deposited in the Upper-Tier Distribution Account an aggregate amount of
immediately available funds equal to the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and Yield Maintenance Charges for such
Distribution Date allocated in payment of the Uncertificated Lower-Tier
Interests as specified in Section 4.01.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2007, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Mortgage Loan, withdraw from the Distribution Account and
deposit in the Interest Reserve Account an amount equal to the Interest Reserve
Amount, if any, in respect of such Interest Reserve Mortgage Loan for such
Distribution Date; provided that no such transfer of monies from the
Distribution Account to the Interest Reserve Account shall be made on the Final
Distribution Date. The Trustee shall also deposit in the Interest Reserve
Account any amounts required to be deposited by the Trustee pursuant to Section
3.06 in connection with losses incurred with respect to Permitted Investments of
funds held in the Interest Reserve Account.
(d) If any Excess Liquidation Proceeds are received, the Trustee
shall establish and maintain one or more accounts (collectively, the "Excess
Liquidation Proceeds Account") to be held in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from its Collection Account
and remit to the Trustee for deposit in the Excess Liquidation Proceeds Account
all Excess Liquidation Proceeds received by it during the Collection Period
ending on the Determination Date immediately prior to such Master Servicer
Remittance Date; provided, however, that if such Excess Liquidation Proceeds
relate to an A/B Loan Pair, the amount allocable to the related B Loan shall be
deposited in the A/B Loan Pair Custodial Account. The Trustee shall also deposit
in the Excess Liquidation Proceeds Account any amounts required to be deposited
by the Trustee pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Excess Liquidation
Proceeds Account.
(e) Funds in a Collection Account, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Interest Reserve Account and
the Excess Liquidation Proceeds Account may be invested in Permitted Investments
in accordance with the provisions of Section 3.06. The Master Servicer shall
give notice to the other parties hereto of the location of its Collection
Account as of the Closing Date and of the new location of the Collection Account
prior to any change thereof. The Upper-Tier Distribution Account, Lower-Tier
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account shall each be established at the Corporate Trust Office of the Trustee
as of the Closing Date, and the Trustee shall give notice to the other parties
hereto of the new location of each of the Upper-Tier Distribution Account,
Lower-Tier Distribution Account, Interest Reserve Account and Excess Liquidation
Proceeds Account prior to any change thereof.
(f) If (i) any A/B Material Default occurs and is continuing (and,
as a result, the related B Loan is being serviced hereunder) or (ii) the
Mortgaged Property securing any A/B Loan Pair has become REO Property, the
Master Servicer shall establish and maintain, or cause to be established and
maintained, an A/B Loan Pair Custodial Account (which may be a sub-account of
the Collection Account), into which the Master Servicer shall deposit or cause
to be deposited on a daily basis (and in no event later than the Business Day
following the receipt of available funds), except as otherwise specifically
provided herein, the following payments and collections received after the
Cut-off Date (other than payments of principal and interest on the applicable
A/B Loan Pair due and payable on or before the Cut-off Date) and 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, including Principal
Prepayments, on such A/B Loan Pair; and
(ii) all payments on account of interest, including Post-ARD
Additional Interest, on such A/B Loan Pair; and
(iii) all Insurance Proceeds and Condemnation Proceeds received in
respect of such A/B Loan Pair together with any amounts representing
recoveries of Workout-Delayed Reimbursement Amounts or Nonrecoverable
Advances in respect of the related A/B Loan Pair; and
(iv) all Liquidation Proceeds with respect to such A/B Loan Pair;
and
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(vi) 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 A/B Loan Pair Custodial
Account.
The foregoing requirements for deposit by the Master Servicer in
an A/B Loan Pair Custodial Account shall be exclusive, it being understood and
agreed that actual payments from a Borrower in the nature of Escrow Payments,
charges for beneficiary statements or demands, assumption fees, modification
fees, extension fees, amounts collected for Borrower checks returned for
insufficient funds or other amounts that the Master Servicer or the Special
Servicer is entitled to retain as additional servicing compensation pursuant to
Section 3.11 need not be deposited by the Master Servicer in such A/B Loan Pair
Custodial Account. If the Master Servicer shall deposit in any A/B Loan Pair
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such A/B Loan Pair Custodial Account.
Within one Business Day of receipt of any of the amounts described
in the second preceding paragraph with respect to any Specially Serviced
Mortgage Loan that is part of an A/B Loan Pair during the period that the
related B Loan is being serviced hereunder, the Special Servicer shall remit
such amounts to the Master Servicer for deposit in the related A/B Loan Pair
Custodial Account pursuant to the second preceding paragraph. Any amounts
received by the Special Servicer with respect to an REO Property that relates to
an A/B Loan Pair shall be deposited into the REO Account and remitted to the
Master Servicer for deposit into the related A/B Loan Pair Custodial Account
pursuant to Section 3.16(c).
If any B Loan is being serviced hereunder, or if the Mortgaged
Property securing any A/B Loan Pair has become REO Property, then as and when
required pursuant to the related A/B Intercreditor Agreement (and in any event
on the Business Day following each Determination Date, or if received after such
Determination Date, one Business Day after receipt), the Master Servicer shall
withdraw from the related A/B Loan Pair Custodial Account and pay to the
applicable parties hereunder such amounts as is permitted under the related A/B
Intercreditor Agreement for purposes of the reimbursement of Advances, the
payment of interest on Advances, the payment of Special Servicing Fees, Workout
Fees and Liquidation Fees and the payment of any other servicing expenses and
fees relating to the subject A/B Loan Pair or any related REO Property and,
further, pay to the Trust, as "A Note Holder" under the related A/B
Intercreditor Agreement, and to the B Loan Holder all amounts to which each of
them is entitled in respect of the subject A Loan and B Loan, respectively, in
accordance with the related A/B Intercreditor Agreement. The foregoing payments
shall be made in accordance with the priorities set forth in the related A/B
Intercreditor Agreement. Payments to the Trust shall be made by transfer of the
applicable funds to the Collection Account, and payments to the B Loan Holder
shall be made in accordance with the related A/B Intercreditor Agreement.
(g) Notwithstanding the foregoing or any other provision to the
contrary in this Agreement, the Trustee may maintain the Distribution Account,
the Interest Reserve Account and the Excess Liquidation Proceeds Account as
three separate subaccounts of a single Eligible Account; provided that: (i) all
deposits into and withdrawals from such single Eligible Account shall be made in
the same manner as would be the case if the Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account were maintained as
three separate accounts; (ii) all distributions on the Certificates will be
calculated and made in the same manner as would be the case if the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account were maintained as three separate accounts; (iii) the Trustee shall make
debits and credits to those three subaccounts in a manner consistent with the
provisions of this Agreement governing transfers of funds between the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account, as the case may be; (iv) the Trustee's maintaining the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account as three separate subaccounts of a single Eligible Account (as
opposed to in the form of three separate Eligible Accounts) shall not materially
and adversely affect any of the Certificateholders; and (v) such single Eligible
Account shall be entitled "[name of Trustee], as Trustee, in trust for the
registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass Through Certificates, Series 2006-C3, Distribution
Account, Interest Reserve Account and Excess Liquidation Proceeds Account."
Section 3.05 Permitted Withdrawals From the Collection Account,
the Distribution Account, the Interest Reserve
Account and the Excess Liquidation Proceeds Account
(a) The Master Servicer may, from time to time, make withdrawals
from the applicable 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 Lower-Tier
Distribution Account or Post-ARD Additional Interest Distribution Account
as provided in Section 3.04(b), the Master Servicer Remittance Amount
with respect to such Master Servicer for each Master Servicer Remittance
Date and any amounts that may be applied by such Master Servicer to make
P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse itself or the Trustee, as applicable, for
xxxxxxxxxxxx X&X Advances (to the extent not previously reimbursed in the
form of a cure payment from the B Loan Holder) made thereby (in each
case, with its own funds), with respect to those Mortgage Loans as to
which such Master Servicer is the Master Servicer and/or any successor
REO Loans in respect thereof, such Master Servicer's and, the Trustee's,
as the case may be, respective rights to reimbursement pursuant to this
clause (ii) with respect to any P&I Advance (other than Nonrecoverable
P&I Advances, which are reimbursable pursuant to clause (vii) below)
being limited to amounts that represent Late Collections of interest and
principal received in respect of the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance was made (net of related
Master Servicing Fees and/or Workout Fees); provided, however, that if
such P&I Advance becomes a Workout-Delayed Reimbursement Amount, then
such P&I Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Collection Account from time to time
that represent collections or recoveries of principal to the extent
provided in clause (vii) below,
(iii) to pay to itself and/or the holder of the Excess Servicing
Fee Right earned and unpaid Master Servicing Fees, as allocable between
the Master Servicer and such holder (if different from the Master
Servicer) with respect to those Mortgage Loans as to which it is the
Master Servicer and/or any REO Mortgage Loans in respect thereof, such
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any such Mortgage Loan or such REO Mortgage Loan being limited
to collections of interest thereon or amounts received that are allocable
as a recovery of interest thereon or with respect thereto;
(iv) to pay the Special Servicer, out of general collections on
the Mortgage Loans in, and any REO Properties relating to, earned and
unpaid Special Servicing Fees in respect of each related Specially
Serviced Mortgage Loan and related REO Mortgage Loan;
(v) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees
to which it is entitled pursuant to, and from the sources contemplated
by, the second and third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Special Servicer's
and the Trustee's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant
to clause (vii) below) being limited to (A) payments made by the related
Borrower that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Insurance Proceeds, Condemnation
Proceeds, Liquidation 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; provided, however, that if such
Servicing Advance becomes a Workout-Delayed Reimbursement Amount, then
such Servicing Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Collection Account from time to time
that represent collections or recoveries of principal to the extent
provided in clause (vii) below, first from such amounts that are
allocated to the Loan Group to which such Mortgage Loan belongs and
second from such amounts that are allocated to the other Loan Group;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
applicable, out of general collections on the Mortgage Loans and any REO
Properties, for (A) any unreimbursed Advances made thereby that have been
determined to be Nonrecoverable Advances, provided that the Master
Servicer may reimburse itself in installments as it may choose in its
sole discretion and (B) Workout-Delayed Reimbursement Amounts, out of the
principal portion of the general collections on the Mortgage Loans and
REO Properties, net of such amounts being reimbursed pursuant to (A)
above; first from such amounts that are allocated to the Loan Group to
which such Mortgage Loan belongs and second from such amounts that are
allocated to the other Loan Group;
(viii) to pay itself, the Special Servicer or the Trustee, as
applicable, any Advance Interest then due and owing to such Person, out
of Default Charges collected on the Mortgage Loan or REO Mortgage Loan,
as the case may be, as to which the related Advance was made, as and to
the extent contemplated by Section 3.26;
(ix) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect relating to a
Mortgage Loan and giving rise to a repurchase obligation of any Mortgage
Loan Seller under Section 7 of the Mortgage Loan Purchase Agreement,
including, any expenses arising out of the enforcement of the repurchase
obligation, each such Person's right to reimbursement pursuant to this
clause (ix) with respect to any Mortgage Loan being limited to that
portion of the Purchase Price paid for such Mortgage Loan that represents
such expense in accordance with clause (e) of the definition of Purchase
Price;
(x) subject to Section 2.03(g), to reimburse itself, the Trustee
or the Special Servicer, as the case may be, first out of Liquidation
Proceeds and Insurance and Condemnation Proceeds with respect to the
subject Mortgage Loan and then out of general collections on the Mortgage
Loans and REO Properties, for any unreimbursed expense reasonably
incurred by such Person relating to a Mortgage Loan in connection with
the enforcement of the Mortgage Loan Seller's obligations under Section 7
of the Mortgage Loan Purchase Agreement, but only to the extent that such
expenses are not reimbursable pursuant to clause (ix) above or otherwise;
(xi) to the extent that, during any Collection Period, such Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer or
the Trustee, as applicable, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c), and
insofar as payment has not already been made, and the related Default
Charges then on deposit in the Collection Account are not sufficient to
make such payment pursuant to clause (viii) above, to pay itself, such
Special Servicer or the Trustee, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties, any related
Advance Interest accrued and payable on the portion of such Advance so
reimbursed or being reimbursed;
(xii) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any related Mortgage Loan or related
REO Property as to which such Master Servicer is the Master Servicer and
that, if paid from a source other than Default Charges on such Mortgage
Loan or the related REO Mortgage Loan, as the case may be, would
constitute an Additional Trust Fund Expense, such payment to be made, as
and to the extent contemplated by Section 3.26, out of Default Charges
collected on the Mortgage Loan or REO Mortgage Loan, as the case may be,
that relates to such expense;
(xiii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in the Collection
Account from time to time;
(xiv) to pay any unpaid Liquidation Expenses incurred with respect
to any related Mortgage Loan or REO Property as to which such Master
Servicer is the Master Servicer, such payments to be made, first, out of
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if
applicable, REO Revenues received in respect of such Mortgage Loan or REO
Property, as the case may be, and then, out of general collections on
other Mortgage Loans and any REO Properties;
(xv) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties relating
thereto, certain servicing expenses related to the Mortgage Loans and REO
Properties as to which such Master Servicer is the Master Servicer that
would, if advanced, constitute Nonrecoverable Servicing Advances;
(xvi) to pay, out of general collections on the Mortgage Loans and
any REO Properties, costs and expenses incurred by the Trust pursuant to
Section 3.09(c) with respect to any Mortgage Loan or REO Property as to
which such Master Servicer is the Master Servicer (other than the costs
of environmental testing, which are to be covered by, and reimbursable
as, a Servicing Advance);
(xvii) to pay itself, the Special Servicer, the Depositor, the
Trustee or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties relating
thereto, any amounts payable to any such Person pursuant to Section 6.03,
Section 7.01(b), Section 8.05(b), or Section 8.13, as applicable;
(xviii) to pay, out of general collections on the Mortgage Loans
and any REO Properties relating thereto, any reasonable out-of-pocket
cost or expense (including the reasonable fees of tax accountants and
attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iii) in
connection with providing advice to the Special Servicer with respect to
any REO Property;
(xix) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, any amount that is
specifically required to be paid to such Person at the expense of the
Trust Fund under any provision of this Agreement and to which reference
is not made in any other clause of this Section 3.05(a), it being
acknowledged that this clause (xix) shall not be construed to modify any
limitation otherwise set forth in this Agreement on the time at which any
Person is entitled to payment or reimbursement of any amount or the funds
from which any such payment or reimbursement is permitted to be made;
(xx) to pay itself, the Special Servicer, a Mortgage Loan Seller,
a Certificateholder or any other particular Person, as the case may be,
with respect to each Mortgage Loan and that was previously purchased or
otherwise removed from the Trust Fund by such Person pursuant to or as
contemplated by this Agreement, all amounts received thereon subsequent
to the date of purchase;
(xxi) to pay amounts payable to any B Loan Holder under the
related A/B Intercreditor Agreement;
(xxii) to reimburse itself for any prior Advance, including any
interest accrued and payable thereon, made for which a cure payment from
the B Loan Holder has been received, from such cure payment;
(xxiii) to transfer Excess Liquidation Proceeds to the Excess
Liquidation Proceeds Account in accordance with Section 3.04(d);
(xxiv) to pay for the cost of any Opinion of Counsel for purposes
of REMIC administration or amending this Agreement pursuant to Section
11.01, in each case, to the extent payable out of the Trust Fund, and to
pay for the cost of obtaining any extensions from the IRS in connection
with the sale of any REO Property;
(xxv) to pay, out of general collections, any and all federal,
state and local taxes imposed on either the Upper-Tier REMIC or
Lower-Tier REMIC;
(xxvi) to pay for the recording cost of this Agreement;
(xxvii) to pay to the respective Mortgage Loan Sellers, amounts
that represent Monthly Payments due on the Mortgage Loans on or before
their respective Due Dates in June 2006 or, in the case of a Replacement
Mortgage Loan, on or before the date on which such loan was added to the
Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts
collected or received by the Trust with respect to such Mortgage Loan
after the related date of replacement pursuant to Section 2.03(b);
(xxviii) to withdraw amounts deposited in such Collection Account
in error; and
(xxix) to clear and terminate such Collection Account at the
termination of this Agreement pursuant to Section 9.01.
No party hereto shall be entitled to payment or reimbursement of
any amount from the Collection Account with respect to any A Loan or related REO
Property for which it can be reimbursed out of amounts then or thereafter on
deposit in the related A/B Loan Pair Custodial Account and, in the case of the B
Loans:
(A) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Pair Custodial Account to the portion of
its Collection Account that does not constitute the A/B Loan Pair Custodial
Account, of amounts necessary for the payments or reimbursement of amounts
described in any one or more of clauses (i), (ii), (iii), (iv), (v), (vi),
(vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or
reimbursement described therein arises from or is related solely to an A Loan,
is allocable to the related A Loan pursuant to this Agreement and is allocable
to the related B Note pursuant to the A/B Intercreditor Agreement, and the
Master Servicer shall also be entitled to make transfers from time to time, from
the related A/B Loan Pair Custodial Account to the portion of its Collection
Account that does not constitute the A/B Loan Pair Custodial Account, of amounts
transferred to such related A/B Loan Pair Custodial Account in error, and
amounts necessary for the clearing and termination of its Collection Account
pursuant to Section 9.01;
(B) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Pair Custodial Account to the portion of
its Collection Account that does not constitute the A/B Loan Pair Custodial
Account, of amounts not otherwise described in clause (A) above to which the
holder of an A Note is entitled under the related A/B Intercreditor Agreement
(including in respect of interest, principal and Prepayment Premiums due in
respect of the A Note (whether or not by operation of any provision of the
related A/B Intercreditor Agreement that entitles the holder of such A Note to
receive remittances in amounts calculated without regard to any modification,
waiver or amendment of the economic terms of such A Note);
(C) the Master Servicer shall on the Business Day following
receipt of payment from the related Borrower, remit to the B Loan Holder any
amounts on deposit in such A/B Loan Pair Custodial Account (net of amounts
permitted or required to be transferred therefrom as described in clauses (A)
and/or (B) above), to the extent that the B Loan Holder is entitled thereto
under the related A/B Intercreditor Agreement (including by way of the operation
of any provision of the related A/B Intercreditor Agreement that entitles the B
Loan Holder to reimbursement of cure payments made by it).
Expenses incurred with respect to any B Loan shall be allocated in
accordance with the related A/B Intercreditor Agreement. The Master Servicer
shall keep and maintain a separate accounting for each Mortgage Loan and B Loan
for the purpose of justifying any withdrawal or transfer from its Collection
Account and any A/B Loan Pair Custodial Account. The Master Servicer shall not
be permitted to withdraw any funds from the portion of its Collection Account
that does not constitute the A/B Loan Pair Custodial Account unless there are no
remaining funds in the related A/B Loan Pair Custodial Account available and
amounts are required to be paid in accordance with the related A/B Intercreditor
Agreement. If the Master Servicer is entitled to make any payment or
reimbursement described above and such payment or reimbursement relates to a B
Loan but is not limited to a specific source of funds (other than the
requirement that it must be made by withdrawal from the A/B Loan Pair Custodial
Account insofar as it relates to a B Loan and is permitted pursuant to the A/B
Intercreditor Agreement), the Master Servicer shall, if funds on deposit in such
A/B Loan Pair Custodial Account are insufficient therefor, request the B Loan
Holder to make such payment or reimbursement to the extent the B Loan Holder is
obligated to make such payment or reimbursement pursuant to the A/B
Intercreditor Agreement. If the B Loan Holder fails to make such payment or
reimbursement that it is obligated to make and the Master Servicer deems the
payment or reimbursement necessary to protect the related Mortgaged Property
from a default, delinquency or other anticipated event that is imminent with
respect to the related Mortgage Loan in its reasonable judgment and in
accordance with the Servicing Standard, the Master Servicer shall be entitled to
make such payment or reimbursement from its Collection Account. If such payment
or reimbursement is subsequently recovered from the B Loan Holder (including, if
permitted by the related A/B Intercreditor Agreement, by offset against
subsequent amounts payable to the B Loan Holder), to the extent that any amounts
were previously taken by the Master Servicer from its Collection Account, the
amount recovered shall be deposited into its Collection Account and shall not be
deposited into the A/B Loan Pair Custodial Account.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from its Collection Account pursuant to any of
clauses (ii) through (xxvi) above.
The Master Servicer shall pay to the Special Servicer from its
Collection Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount to which such Special Servicer is entitled. The
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein. The Special Servicer shall keep
and maintain separate accounting for each Specially Serviced Mortgage Loan and
REO Property for which it acts as special servicer, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request thereby
for withdrawal from a Collection Account.
If at any time the Master Servicer (or the Trustee) determines
that the reimbursement of a Nonrecoverable Advance during a Collection Period
will exceed the full amount of the principal portion of general collections
received on the Mortgage Loans during such Collection Period, then the Master
Servicer (or the Trustee) shall use its reasonable efforts to give the Rating
Agencies at least 15 days notice prior to any reimbursement to it of
Nonrecoverable Advances from amounts in its Collection Account allocable to
interest on the Mortgage Loans unless extraordinary or unanticipated
circumstances, including, without limitation, the following, make such notice
impractical (1) the Master Servicer (or the Trustee) determines in its sole
discretion that waiting 15 days after such a notice could jeopardize the Master
Servicer's (or the Trustee's) ability to recover such Nonrecoverable Advance,
(2) changed circumstances or new or different information becomes known to the
Master Servicer (or the Trustee) that could affect or cause a determination of
whether any Advance is a Nonrecoverable Advance, whether to defer reimbursement
of a Nonrecoverable Advance or the determination in clause (1) above, or (3) the
Master Servicer has not timely received from the Trustee information requested
by such Master Servicer to consider in determining whether to defer
reimbursement of a Nonrecoverable Advance (or the Trustee has not timely
received from the Master Servicer information requested by the Trustee to
consider in determining whether to defer reimbursement of a Nonrecoverable
Advance); provided, however, that, if clause (1), (2) or (3) apply, the Master
Servicer (or, if applicable, the Trustee) shall use reasonable efforts to give
Rating Agencies notice of an anticipated reimbursement to it of Nonrecoverable
Advances from amounts in its Collection Account allocable to interest on the
Mortgage Loans as soon as reasonably practicable in such circumstances. The
failure to give any notice contemplated by this paragraph to the Rating Agencies
shall not give rise to any liability whatsoever on the part of the Master
Servicer or Trustee, shall not constitute an Event of Default hereunder and
shall not be a condition for reimbursement of a Nonrecoverable Advance.
(b) The Trustee shall, from time to time, make or be deemed to
make withdrawals from the Lower-Tier Distribution Account for each of the
following purposes (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to make distributions or deemed distributions of the
Lower-Tier Distribution Amount pursuant to Section 4.01 and the amount of
any Prepayment Premium and Yield Maintenance Charges distributable
pursuant to Section 4.01(c) to the Upper-Tier Distribution Account;
(ii) to pay itself or any of its directors, officers, employees
and agents, as the case may be, any amounts payable or reimbursable to
any such Person pursuant to Section 8.05, including the Trustee's Fee;
(iii) [Reserved];
(iv) [Reserved];
(v) to pay for the cost of the Opinions of Counsel contemplated by
Section 11.01(a) or Section 11.01(c) in connection with any amendment to
this Agreement requested by the Trustee;
(vi) to pay any and all federal, state and local taxes imposed the
Upper-Tier REMIC or Lower-Tier REMIC created hereunder, together with all
incidental costs and expenses, and any and all expenses relating to tax
audits, if and to the extent that either (A) none of the parties hereto
are liable therefor pursuant to Section 10.01(b) and/or Section 10.01(f)
or (B) any such Person that may be so liable has failed to timely make
the required payment;
(vii) to recoup any amounts deposited in the Distribution Account
in error;
(viii) to pay the Trustee any Net Investment Earnings on funds in
the Distribution Account pursuant to Section 3.06;
(ix) to transfer or be deemed to transfer Interest Reserve Amounts
in respect of the Interest Reserve Mortgage Loans to the Interest Reserve
Account as and when required by Section 3.04(c); and
(x) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) Notwithstanding anything herein to the contrary, with respect
to any Mortgage Loan, if amounts on deposit in the Collection Account are not
sufficient to reimburse the full amount of, together with interest on, Advances
listed in Sections 3.05(a)(ii), (vi), (vii), (viii) and (xi), then
reimbursements shall be paid first to the Trustee and then to the Master
Servicer.
(d) On the Master Servicer Remittance Date in March of each year
(commencing in March 2007), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Trustee shall withdraw or be deemed to withdraw from the Interest Reserve
Account and deposit or be deemed to deposit in the Distribution Account all
Interest Reserve Amounts in respect of the Interest Reserve Mortgage Loans then
on deposit in the Interest Reserve Account.
(e) On the Business Day prior to each Distribution Date, the
Trustee shall withdraw or be deemed to withdraw from the Excess Liquidation
Proceeds Account and deposit or be deemed to deposit in the Distribution
Account, for distribution on such Distribution Date, an amount equal to the
lesser of (i) the entire amount, if any, then on deposit in the Excess
Liquidation Proceeds Account and (ii) the excess, if any, of the aggregate
amount distributable on such Distribution Date pursuant to Sections 4.01(a) and
4.01(b), over the Available Distribution Amount for such Distribution Date
(calculated without regard to such transfer from the Excess Liquidation Proceeds
Account to the Distribution Account); provided that on the Business Day prior to
the Final Distribution Date, the Trustee shall withdraw from the Excess
Liquidation Proceeds Account and deposit in the Distribution Account, for
distribution on such Distribution Date, any and all amounts then on deposit in
the Excess Liquidation Proceeds Account. The Trustee shall, from time to time,
make withdrawals from the Excess Liquidation Proceeds Account to pay itself
interest or other income earned on deposits in the Excess Liquidation Proceeds
Account, in accordance with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to the Excess Liquidation Proceeds
Account for each Collection Period).
(f) The Trustee, the Depositor, the Master Servicer and the
Special Servicer, as applicable, shall in all cases have a right prior to the
Certificateholders to any particular funds on deposit in a Collection Account
and the Distribution Account from time to time for the reimbursement or payment
of compensation, Advances (with interest thereon at the Reimbursement Rate) and
their respective expenses hereunder, but only if and to the extent such
compensation, Advances (with interest) and expenses are to be reimbursed or paid
from such particular funds on deposit in a Collection Account or the
Distribution Account pursuant to the express terms of this Agreement.
Section 3.06 Investment of Funds in the Collection Account,
Servicing Accounts, Reserve Accounts and the REO
Account
(a) The Master Servicer may direct (pursuant to a standing order
or otherwise) any depositary institution (including the Trustee) maintaining a
Collection Account, any A/B Loan Pair Custodial Account or any Servicing Account
or Reserve Account held by it, and the Special Servicer may direct (pursuant to
a standing order or otherwise) any depositary institution maintaining an REO
Account and the Trustee may direct (pursuant to a standing order or otherwise)
any depositary institution maintaining the Distribution Account, the Interest
Reserve Account or the Excess Liquidation Proceeds Account, to invest, or if it
is such depositary institution, may itself invest, the funds held therein (each
such account, for purposes of this Section 3.06, an "Investment Account") in
(but 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 or the related
Mortgage Loan Documents, as applicable, or with respect to Permitted Investments
of funds held in the Distribution Account no later than 12:00 p.m. on the next
succeeding Distribution Date; provided that any such investment of funds in any
Servicing Account or Reserve Account shall be subject to applicable law and the
terms of the related Mortgage Loan Documents; and provided, further, that the
funds in any Investment Account shall remain uninvested unless and until the
Master Servicer, Special Servicer or the Trustee, as applicable, gives timely
investment instructions with respect thereto pursuant to this Section 3.06. All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds in an Investment Account shall be made in the name of
the Trustee (in its capacity as such).
The Master Servicer (in the case of any account held under this
Agreement by the Master Servicer) or the Special Servicer (in the case of the
REO Account), on behalf of the Trustee (in the case of any Trustee Account)
shall be the "entitlement holder," as such term is defined in the UCC, of any
Permitted Investment that is a "security entitlement," as such term is defined
in the UCC, and maintain continuous possession of any Permitted Investment of
amounts in such accounts 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 or Special Servicer shall constitute possession by the Trustee, as
secured party, for purposes of Section 9-313 of the UCC and any other applicable
law. In the event amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of any Master Servicer Account), the Special Servicer (in the case of
the REO Account) or the Trustee (in the case of any Trustee 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 at least 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 such Master Servicer, such 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 a Collection Account or any A/B Loan Pair Custodial Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of such Master Servicer and
shall be subject to its withdrawal in accordance with Section 3.05(a). Whether
or not the Master Servicer directs the investment of funds in any Servicing
Account or Reserve Account maintained by it, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, and
subject to the requirements of applicable law or the terms of the related
Mortgage Loan regarding the payment of such interest and investment income to
the related Borrower, shall be for the sole and exclusive benefit of such Master
Servicer and shall be subject to withdrawal from time to time in accordance with
Section 3.03. Whether or not the Special Servicer directs the investment of
funds in an REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of such Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). Whether or not the Trustee
directs the investment of funds in the Distribution Account, the Interest
Reserve Account or the Excess Liquidation Proceeds Account, interest and
investment income realized on funds deposited therein, to the extent of any Net
Investment Earnings, if any, for such Account for each Collection Period, shall
be for the sole and exclusive benefit of the Trustee and shall be subject to its
withdrawal in accordance with Section 3.05(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account (other
than a loss of what would otherwise have constituted investment earnings), the
Master Servicer (in the case of a Collection Account and any Servicing Account
or Reserve Account), the Special Servicer (in the case of an REO Account) and
the Trustee (in the case of the Distribution Account, the Interest Reserve
Account or the Excess Liquidation Proceeds Account) shall promptly deposit
therein (or, solely to the extent that the loss is of an amount credited to an
A/B Loan Pair Custodial Account, deposit to the related A/B Loan Pair Custodial
Account, as the case may be) from its own funds, without right of reimbursement,
no later than the end of the Collection Period during which such loss was
incurred, the amount of the Net Investment Loss, if any, in respect of such
Investment Account for such Collection Period (or, in the case of a Servicing
Account or Reserve Account, the entire amount of such loss), except (in the case
of any such loss with respect to a Servicing Account or Reserve Account) to the
extent the loss amounts were invested for the benefit of a Borrower under the
terms of a Mortgage Loan or applicable law and such Borrower has no recourse
against the Trust in respect of such loss.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment, and if the Master Servicer (if such
default is in respect of a Permitted Investment of funds in a Collection Account
or in any Reserve Account or Servicing Account) or the Special Servicer (if such
default is in respect of a Permitted Investment of funds in an REO Account), as
applicable, is in default of its obligations under Section 3.06(b), the Trustee
may (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 of
Regular Certificates, the Trustee shall) take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate legal proceedings. Any costs incurred by the Trustee
in taking any such action shall be reimbursed to it by the Master Servicer if
the default is in respect of a Permitted Investment of funds in a Collection
Account or in any Reserve Account or Servicing Account or by the Special
Servicer if the default is in respect of a Permitted Investment of funds in an
REO Account. This provision is in no way intended to limit any actions that the
Master Servicer or the Special Servicer may take in this regard at its own
expense. (d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance 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 shall use reasonable efforts consistent
with the Servicing Standard to cause each Borrower with respect to the Mortgage
Loans for which it acts as Master Servicer to maintain from Qualified Insurers,
and, if the Borrower does not so maintain, such Master Servicer will itself
cause to be maintained, for each Mortgaged Property (including each Mortgaged
Property relating to any Specially Serviced Mortgage Loan) all insurance
coverage as is required, subject to applicable law, under the related Mortgage
Loan Documents; 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 Borrower is required to
maintain, such Master Servicer shall exercise such discretion in a manner
consistent with the Servicing Standard, with a view towards requiring insurance
comparable to that required under other Mortgage Loans with express provisions
governing such matters and, in any event, business interruption or rental loss
insurance for at least 12 months; and provided, further, that, if and to the
extent that any such Mortgage so permits, the related Borrower shall be required
to obtain the required insurance coverage from Qualified Insurers that, in each
case, have a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and "A2" from Xxxxx'x (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
ability as would not, as confirmed in writing by the relevant Rating Agency,
result in an Adverse Rating Event); and provided, further, that such Master
Servicer shall be required to maintain such insurance coverage upon the related
Borrower's failure to do so only to the extent that (i) the Trustee as mortgagee
has an insurable interest, (ii) such insurance is available at commercially
reasonable rates (as determined by the Master Servicer and approved by the
Controlling Class Representative, subject to Section 3.24(b) and (iii) any
related Servicing Advance is deemed by the Master Servicer to be recoverable
from collections on the related Mortgage Loan; provided, that if such Servicing
Advance is deemed nonrecoverable the Master Servicer (or, at the direction of
the Special Servicer if a Specially Serviced Mortgage Loan or an REO Property is
involved) shall pay such amounts out of the applicable Collection Account
provided, further, that the Master Servicer (or the Special Servicer, if a
Specially Serviced Mortgage Loan or an REO Property is involved) has determined
in accordance with the Servicing Standard that making such payment is in the
best interests of the Certificateholders (as a collective whole), as evidenced
in each case by any Officer's Certificate delivered promptly to the Trustee, the
Depositor and the Controlling Class Representative, setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. Subject to Section 3.17(b), the
Special Servicer shall also cause to be maintained for each REO Property with
respect to the Mortgage Loans for which it acts as Special Servicer no less
insurance coverage (to the extent available at commercially reasonable rates, as
determined by the Special Servicer with the consent of the Controlling Class
Representative, subject to Section 3.24(b) than was previously required of the
Borrower under the related Mortgage and, at a minimum, (i) hazard insurance with
a replacement cost rider, (ii) business interruption or rental loss insurance
for at least 12 months, and (iii) commercial general liability insurance, in
each case, in an amount customary for the type and geographic location of such
REO Property and consistent with the Servicing Standard; provided that all such
insurance shall be obtained from Qualified Insurers that, in each case, shall
have a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and "A2" from Xxxxx'x (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
ability as would not, as confirmed in writing by the relevant Rating Agency,
result in an Adverse Rating Event). All such insurance policies shall contain
(if they insure against loss to property) a "standard" mortgagee clause, with
loss payable to the Master Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of Mortgage Loans), or shall name the Trustee as
the insured, with loss payable to the Special Servicer on behalf of the Trustee
(in the case of insurance maintained in respect of REO Properties), and 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 Borrower, in each case in accordance with the Servicing Standard) shall
be deposited in the Collection Account or any related A/B Loan Pair Custodial
Account, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of a Mortgage Loan, or in the 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 calculating monthly distributions to Certificateholders, be
added to unpaid principal balance or Stated Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of the Master
Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan. Costs to the Master Servicer or the Special
Servicer of maintaining insurance policies pursuant to this Section 3.07 shall
be paid by and reimbursable to such Master Servicer or Special Servicer, as
applicable, as a Servicing Advance.
Subject to the preceding paragraph, the Master Servicer shall use
reasonable efforts to cause the Borrower to maintain or, if the Borrower does
not so maintain, the Master Servicer will maintain all-risk casualty insurance
or extended coverage insurance (with special form coverage) (the cost of which
will be payable as a Servicing Advance), which does not contain any carve-out
for terrorist or similar acts; provided, however, the Master Servicer shall not
require any Borrower to obtain or maintain insurance in excess of the amounts of
coverage and deductibles required by the related Mortgage Loan Documents or the
related Mortgage Loan Seller in connection with the origination of a Mortgage
Loan unless such Master Servicer determines, in accordance with the Servicing
Standard, that such insurance required at origination would not be prudent for
Mortgaged Property of the same type as the related Mortgaged Property. The
Master Servicer shall not be required to call a default under a Mortgage Loan if
the related Borrower fails to maintain such insurance, and the Master Servicer
shall not be required to maintain such insurance, to the extent, if any, that
the cost of such insurance exceeds the maximum cost that the related Borrower is
required to incur under the related Mortgage Loan Documents, or if the Master
Servicer has determined in accordance with the Servicing Standard that either
(i) such insurance is not available at commercially reasonable rates or that
such hazards are not at the time commonly insured against for properties similar
to the Mortgaged Property and located in or around the region in which such
Mortgaged Property is located (which determination shall be subject to the
approval of the Controlling Class Representative, subject to the limitations of
Section 3.24(b), or (ii) such insurance is not available at any rate.
(b) If the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
a financial strength or claims-paying rating no lower than "A" from S&P and "A2"
from Xxxxx'x or having such other financial strength or claims-paying ability
rating as would not, as confirmed in writing by the relevant Rating Agency,
result in an Adverse Rating Event, and (ii) provides protection equivalent to
the individual policies otherwise required, such Master Servicer or 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 or REO Properties, as applicable. Such 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 an
individual policy, promptly deposit into the Collection Account from its own
funds the amount not otherwise payable under the blanket or master force placed
policy in connection with such loss or losses because of such deductible clause
to the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket or master force
placed policy in a timely fashion in accordance with the terms of such policy.
(c) Promptly after (but in no event more than 30 days after) the
Closing Date, with respect to each of the Mortgage Loans for which it acts as
Master Servicer covered by an 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, to be an insured (and for such Master Servicer, on behalf of
the Trust, 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 Mortgage Loan covered thereby, such 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. If
any other party hereto has actual knowledge of an Insured Environmental Event
with respect to any Mortgage Loan covered by an Environmental Insurance Policy
to this Agreement, such party shall promptly so notify the Master Servicer. 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 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
Mortgage Loans, such Master Servicer shall, within five Business Days after
receipt of such notice, notify the Special Servicer, the Controlling Class
Representative, the Rating Agencies and the Trustee of such termination in
writing. Upon receipt of such notice, such Master Servicer 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.
(d) 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 during which Specially
Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep
in force with a Qualified Insurer having a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A" from S&P and "A2" from Xxxxx'x,
a fidelity bond in such form and amount as would permit it to be a qualified
Xxxxxx Xxx seller-servicer of multifamily mortgage loans (or in such other form
and amount or issued by an insurer with such other financial strength or
claims-paying ability rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency). 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
that it may not be canceled without ten days' prior written notice to the
Trustee.
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 during which Specially Serviced
Mortgage Loans and/or REO Properties as to which it is the Special Servicer
exist as part of the Trust Fund) also keep in force with a Qualified Insurer
having a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and "A2" from Xxxxx'x, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees 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 Xxxxxx Xxx seller-servicer of multifamily mortgage loans (or in such
other form and amount or issued by an insurer with such other financial strength
or claims-paying rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency). 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 that it may not be canceled without ten days' prior written notice to
the Trustee.
Section 3.08 Enforcement of Alienation Clauses
The Master Servicer (with respect to Performing Mortgage Loans)
and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on
behalf of the Trustee as the mortgagee of record, shall enforce any
restrictions, contained in the related Mortgage or other related loan document
on transfers or further encumbrances of the related Mortgaged Property and on
transfers or encumbrances of interests in the related Borrower, unless the
Master Servicer or the Special Servicer, as the case may be, has determined, in
its reasonable judgment, that waiver of such restrictions would be in accordance
with the Servicing Standard; provided that, subject to the related Mortgage Loan
Documents and applicable law, neither the Master Servicer nor the Special
Servicer shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-sale" clause or
"due-on-encumbrance" clause until it has received written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, if (but only if) with respect to a
"due-on-sale" clause, such "due-on-sale" clause involves any Mortgage Loan that,
individually or together with all other Mortgage Loans, if any, that are in the
same Cross-Collateralized Group as such Mortgage Loan, with respect to S&P, is a
Significant Mortgage Loan, and with respect to Xxxxx'x, has an original
principal balance that is one of the ten highest original principal balances in
the Mortgage Pool or, with respect to the enforcement of a "due-on-encumbrance"
clause, such Mortgage Loan or group of Cross-Collateralized Mortgage Loans: with
respect to S&P is (A) a Significant Mortgage Loan or represents 2% or more of
the aggregate outstanding principal balance of the Mortgage Pool at such time,
or (B) by itself, or as part of a Crossed Mortgage Loan group or group of
Mortgage Loans with affiliated Borrowers has (a) a Loan-to-Value Ratio equal to
or greater than 85% or (b) a Debt Service Coverage Ratio equal to or less than
1.2x (in each case, treating the existing debt on the subject Mortgaged Property
and the proposed additional debt as if such total debt were a single Mortgage
Loan), or with respect to Xxxxx'x, has an original principal balance that is one
of the ten highest original principal balances in the Mortgage Pool, and
provided, further, that the Master Servicer shall not waive any right it has, or
grant any consent it is otherwise entitled to withhold under any "due-on-sale"
or "due-on-encumbrance" clause under any Mortgage Loan for which it acts as
Master Servicer until it has received the consent of the Special Servicer (the
giving of which consent shall be subject to Section 3.24; and provided, further,
that, subject to the related Mortgage Loan Documents and applicable law, neither
such Master Servicer nor such Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, or approve
the assumption of any Mortgage Loan, unless in any such case, all associated
costs and expenses are covered without any expense to the Trust (it being
understood and agreed that, except as expressly provided herein, neither such
Special Servicer nor such Master Servicer shall be obligated to cover or assume
any such costs or expenses); and provided, further, that neither the Master
Servicer nor the Special Servicer shall (to the extent that it is within the
control thereof to prohibit such event) consent to the transfer of any Mortgaged
Property which secures a Cross-Collateralized Group unless (i) all of the
Mortgaged Properties securing such Cross-Collateralized Group are transferred
simultaneously by the respective Borrower or (ii) it obtains the consent of the
Controlling Class Representative, subject to the limitations of Section 3.24(b).
The Master Servicer and the Special Servicer shall each provide the other and
the Controlling Class Representative with all such information as each may
reasonably request in order to make any determination required under this
paragraph.
In connection with any permitted assumption of any Mortgage Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Mortgage Loan ) or the Special
Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all
documents necessary and appropriate for such purposes and shall coordinate with
the related Borrower for the due execution and delivery of such documents.
If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Borrower or a Mortgaged Property, then
such Master Servicer or such Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Borrower and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses, to the extent such fees and expenses are expressly
required to be paid by the related Borrower under the related Mortgage Loan
Document or applicable law. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11. Neither the Master Servicer nor the Special
Servicer shall waive any assumption fee or assumption application fee, to the
extent it would constitute additional compensation for the other such party,
without the consent of such other party.
Section 3.09 Realization Upon Defaulted Mortgage Loans
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 3.24, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of the real property and other collateral securing any Mortgage Loan
for which it acts as Special Servicer that comes into and continues in default
and as to which no satisfactory arrangements can be made for collection of
delinquent payments, including pursuant to Section 3.20; provided that the
Master Servicer shall not, with respect to any ARD Mortgage Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Post-ARD Additional Interest (other than the making of requests for
its collection), and such Special Servicer may do so only if (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the reasonable judgment of the Special Servicer, and
without regard to such Post-ARD Additional Interest, also necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such Mortgage Loan have been paid, the payment of such Post-ARD Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. In connection with the foregoing, in the event of a default
under any Mortgage Loan or Cross-Collateralized Group that is secured by real
properties located in multiple states, and such states include California or
another state with a statute, rule or regulation comparable to California's "one
action rule," then the Special Servicer shall consult Independent counsel
regarding the order and manner in which such Special Servicer should foreclose
upon or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Master Servicer as a
Servicing Advance. In addition, all other costs and expenses incurred in any
foreclosure sale or similar proceeding shall be paid by, and reimbursable to,
the Master Servicer as a Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust, 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 such Special Servicer taking into account the factors described in
Section 3.18 and the results of any appraisal obtained pursuant to the following
sentence or otherwise, all such cash bids to be made in a manner consistent with
the Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a defaulted Mortgage Loan for
which it acts as Special Servicer, whether for purposes of bidding at
foreclosure or otherwise, such Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be paid by, and reimbursable to, the Master Servicer as a Servicing
Advance). The Master Servicer shall not foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing a defaulted Mortgage Loan.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify for purposes of
Section 860D(a) of the Code as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such REO Property that is
not treated as "foreclosure property" and that is held by the Lower-Tier REMIC
at any given time constitutes not more than a de minimis amount of the assets of
such Lower-Tier REMIC within the meaning of Treasury Regulations Section
1.860D-1(b)(3)(i) and (ii), or (ii) except as permitted by Section 3.17(a),
subject the Trust to the imposition of any federal income or prohibited
transaction taxes under the Code. Subject to the foregoing, however, a Mortgaged
Property may be acquired through a single member limited liability company. In
addition, except as permitted under Section 3.17(a), the Special Servicer shall
not acquire any personal property on behalf of the Trust 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 such Special
Servicer; or
(ii) such Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be paid by and reimbursable to the
Master Servicer as a Servicing Advance) to the effect that the holding of
such personal property as part of the Trust Fund will not result in an
Adverse REMIC Event with respect to the Upper-Tier REMIC or the
Lower-Tier REMIC or in an Adverse Grantor Trust Event with respect to the
Grantor Trust.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust, obtain title to a Mortgaged Property by foreclosure, 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 (and, in the case of an A/B Loan Pair, the related B Loan
Holder) or any other specified person, could, in the reasonable judgment of the
Special Servicer, exercised 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, unless:
(i) such Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that (x) the Mortgaged Property is
in compliance with applicable environmental laws and regulations and (y)
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
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, such Special Servicer has previously
determined in accordance with the Servicing Standard, on the same basis
as described in clause (c)(i) above, and taking into account the coverage
provided under the related Environmental Insurance Policy, that it would
maximize the recovery to the Certificateholders (and the B Loan Holder if
in connection with a B Loan, taken as a collective whole) on a present
value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such remedial, corrective and/or other
further actions as are necessary to bring the Mortgaged Property into
compliance with applicable environmental laws and regulations and to
appropriately address any of the circumstances and conditions referred to
in clause (c)(i)(y) above.
Any such determination by the Special Servicer contemplated by
clause (c)(i) or clause (c)(ii) of the preceding paragraph shall be evidenced by
an Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and the Controlling Class Representative, specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer given in accordance with the
Servicing Standard; provided, however, that the Master Servicer shall not be
obligated in connection therewith to advance any funds which, if so advanced,
would constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall
be subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (c)(ii) of the preceding paragraph shall be payable out
of the Master Servicer's Collection Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, 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 Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide written reports to the
Trustee, the Master Servicer and the Controlling Class Representative monthly in
writing as to any actions taken by such Special Servicer with respect to any
Mortgaged Property as to which neither of the conditions set forth in clauses
(i) and (ii) of the first paragraph of Section 3.09(c) has been satisfied, in
each case until the earliest to occur of satisfaction of either of such
conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Mortgage Loan's becoming a Corrected Mortgaged Loan.
(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 Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) Annually in each January, the Special Servicer shall on a
timely basis forward to the Master Servicer, who shall promptly file same with
the IRS on a timely basis, the information returns with respect to the reports
of foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Mortgaged Property required by Sections
6050H (as applicable), 6050J and 6050P of the Code. Contemporaneously, the
Special Servicer shall deliver to the Master Servicer, who shall promptly
forward it to the Trustee, an Officer's Certificate stating that all such
information returns relating to Specially Serviced Mortgage Loans and REO
Properties that were required to be filed during the prior twelve (12) months
have been properly completed and timely provided to such Master Servicer. The
Master Servicer shall prepare and file the information returns with respect to
the receipt of any mortgage interest received in a trade or business from
individuals with respect to any Mortgage Loan for which it acts as Master
Servicer as required by Section 6050H of the Code. All information returns shall
be in form and substance sufficient to meet the reporting requirements imposed
by the relevant sections of the Code.
(h) Within three Business Days from the date on which the Special
Servicer makes a Final Recovery Determination with respect to any Mortgage Loan
for which it acts as Special Servicer or related REO Property, it shall deliver
to the Trustee, the Master Servicer and the Controlling Class Representative an
Officer's Certificate evidencing such determination. The Special Servicer shall
maintain accurate records, prepared by a Servicing Officer, of each such Final
Recovery Determination (if any) and the basis thereof.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files
(a) Upon the payment in full of any Mortgage Loan, or the receipt
by the Master Servicer or the Special Servicer, as the case may be, of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Master Servicer or Special Servicer, as the case may be, will
promptly notify the Trustee and request delivery of the related Mortgage File.
Any such notice and request shall be in the form of a Request for Release (and
shall include two copies) signed by a Servicing Officer (or in a mutually
agreeable electronic format that will, in lieu of a signature on its face,
originate from a Servicing Officer) 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 or an A/B Loan Pair
Custodial Account, as applicable pursuant to Section 3.04, or remitted to the
Master Servicer to enable such deposit, have been or will be so deposited.
Within six Business Days (or within such shorter period as release can
reasonably be accomplished if the Master Servicer or Special Servicer notifies
the Trustee of an exigency) of receipt of such notice and request, the Trustee
(or, to the extent provided in Section 3.01(b), the Master Servicer or the
Special Servicer, as applicable) shall execute such instruments of satisfaction,
deeds of reconveyance and other documents as shall have been furnished to it by
the Master Servicer or the Special Servicer, and the Trustee shall release and
deliver the related Mortgage File to the Master Servicer or Special Servicer, as
the case may be. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or any A/B Loan Pair Custodial Account.
(b) From time to time as is appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer,
as applicable, shall deliver to the Trustee two copies of a Request for Release
signed by a Servicing Officer (or in a mutually agreeable electronic format that
will, in lieu of a signature on its face, originate from a Servicing Officer).
Upon receipt of the foregoing, the Trustee shall deliver the Mortgage File or
any document therein to the Master Servicer or the Special Servicer (or a
designee), as the case may be. Upon return of the Mortgage File to the Trustee,
the Trustee shall execute an acknowledgment of receipt.
(c) Within five Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the release of the lien of a Mortgage, or to
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Borrower on the Note or Mortgage
or to obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Note or Mortgage or otherwise available at law or in equity. The
Special Servicer shall be responsible for the preparation of all such documents
and pleadings. When submitted to the Trustee and, if applicable, the related B
Loan Holder(s) for signature, such documents or pleadings shall be accompanied
by a certificate of a Servicing Officer requesting that such pleadings or
documents be executed by the Trustee or any related B Loan Holder and certifying
as to the reason such documents or pleadings are required, that the proposed
action is in the best interest of the Certificateholders (and, in the case of an
A/B Loan Pair, the related B Loan Holder(s) (as a collective whole) and that the
execution and delivery thereof by the Trustee and any related B Loan Holder, as
the case may be, 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) From time to time as is appropriate for servicing or
foreclosure of any B Loan, the Master Servicer or Special Servicer, as
applicable, subject to the related intercreditor, co-lender or similar
agreement, shall request the original of the related Note from the related B
Loan Holder.
Section 3.11 Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the
Trustee Regarding Back-up Servicing Advances
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan and each REO Mortgage Loan. As to each such Mortgage Loan and
REO Mortgage Loan, for each calendar month (commencing with June 2006) or any
applicable portion thereof, the Master Servicing Fee shall accrue at the related
Master Servicing Fee Rate on the same principal amount as interest accrues from
time to time during such calendar month (or portion thereof) on such Mortgage
Loan or is deemed to accrue from time to time during such calendar month (or
portion thereof) on such REO Mortgage Loan, as the case may be, and shall be
calculated on the same Interest Accrual Basis as is applicable for such Mortgage
Loan or REO Mortgage Loan, as the case may be. The Master Servicing Fee with
respect to any Mortgage Loan or REO Mortgage Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Master Servicing Fees earned with
respect to any Mortgage Loan or REO Mortgage Loan shall be payable monthly from
payments of interest on such Mortgage Loan or REO Revenues allocable as interest
on such REO Mortgage Loan, as the case may be. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Mortgage Loan out of the portion any related Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds allocable as interest on such
Mortgage Loan or REO Mortgage Loan, as the case may be.
Midland and any successor holder of the Excess Servicing Fee Right
shall be entitled, at any time, at its own expense, to transfer, sell, pledge or
otherwise assign the Excess Servicing Fee Right in whole (but not in part) to
any Qualified Institutional Buyer or Institutional Accredited Investor (other
than a Plan), provided that no such transfer, sale, pledge or other assignment
shall be made unless (i) 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, (ii) the prospective
transferor shall have delivered to the Depositor a certificate substantially in
the form attached as Exhibit F-3A hereto, and (iii) the prospective transferee
shall have delivered to Midland and the Depositor a certificate substantially in
the form attached as Exhibit F-3B hereto. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Excess
Servicing Fee Right under the Securities Act or any other securities law or to
take any action not otherwise required under this Agreement to permit the
transfer, sale, pledge or assignment of the Excess Servicing Fee Right without
registration or qualification. Midland and each holder of the Excess Servicing
Fee Right desiring to effect a transfer, sale, pledge or other assignment of the
Excess Servicing Fee Right shall, and Midland hereby agrees, and each such
holder of the Excess Servicing Fee Right by its acceptance of the Excess
Servicing Fee Right shall be deemed to have agreed, in connection with any
transfer of the Excess Servicing Fee Right 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 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 Excess Servicing Fee Right, the holder thereof shall be deemed
to have agreed (i) to keep all information relating 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 their 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 Excess
Servicing Fee Right or any 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 Excess Servicing Fee Right 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 Excess Servicing Fee Right or any 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 Excess Servicing Fee
Right, the Person then acting as Master Servicer shall pay, out of each amount
paid to the Master Servicer as Master Servicing Fees, the Excess Servicing Fees
to the holder of the Excess Servicing Fee Right within one 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 such Master Servicer. The holder of the Excess Servicing Fee Right
shall not have any rights under this Agreement except as set forth in the
preceding sentences of this paragraph. Neither the Certificate Registrar nor the
Trustee shall have any obligation whatsoever regarding payment of the Excess
Servicing Fee or the assignment or transfer of the Excess Servicing Fee.
Except with respect to the Excess Servicing Fee Right, 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 and except as otherwise
expressly provided herein, including as provided in the prior paragraph.
(b) Subject to offset as provided in Section 3.02(a), the Master
Servicer shall be entitled to receive the following items as additional
servicing compensation with respect to the Mortgage Loans for which it acts as
Master Servicer (the following items, collectively, "Additional Master Servicing
Compensation"):
(i) any and all Net Default Charges collected with respect to a
Performing Mortgage Loan;
(ii) 50% of any and all Net Assumption Application Fees, Net
Assumption Fees, modification fees, extension fees, consent fees, waiver
fees and earn-out fees actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Borrower with respect to a
Performing Mortgage Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses and defeasance fees
collected on the Mortgage Loans; and
(v) interest or other income earned on deposits in the Investment
Accounts maintained by such Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Borrower under applicable law or under the related Mortgage).
The Master Servicer shall not be entitled to any Master Servicing
Fees or any other compensation from the Trust Fund hereunder with respect to the
B Loans
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, such Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan for
which it acts as Special Servicer. As to each such Specially Serviced Mortgage
Loan and REO Mortgage Loan, for any particular calendar month or applicable
portion thereof, the Special Servicing Fee shall accrue at the Special Servicing
Fee Rate on the same principal amount as interest accrues from time to time
during such calendar month (or portion thereof) on such Specially Serviced
Mortgage Loan or is deemed to accrue from time to time during such calendar
month (or portion thereof) on such REO Mortgage Loan, as the case may be, and
shall be calculated on the same Interest Accrual Basis as is applicable for such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Mortgage Loan shall cease to accrue as of the date a Liquidation Event
occurs in respect thereof or, in the case of a Specially Serviced Mortgage Loan,
as of the date it becomes a Corrected Mortgage Loan. Earned but unpaid Special
Servicing Fees shall be payable monthly out of general collections on the
Mortgage Loans, and any REO Properties relating thereto, on deposit in the
Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan for which it acts as Special Servicer. As to each such
Corrected Mortgage Loan, the Workout Fee shall be payable out of, and shall be
calculated by application of the Workout Fee Rate to, (i) each payment of
interest (other than Default Interest and Post-ARD Additional Interest) and
principal received from the related Borrower on such Mortgage Loan for so long
as it remains a Corrected Mortgage Loan and (ii) the interest (other than
Advance Interest) and principal portions of any Liquidation Proceeds received on
such Mortgage Loan while it is a Corrected Mortgage Loan in connection with the
repurchase or replacement thereof subsequent to the end of the applicable
Initial Resolution Period and any applicable Resolution Extension Period, as a
result of a Material Breach or a Material Document Defect, by the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement
or, if applicable, by the Column Performance Guarantor pursuant to the Column
Performance Guarantee. The Workout Fee with respect to any Corrected Mortgage
Loan will cease to be payable if a new 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 Mortgage
Loan again became a Corrected Mortgage Loan with respect to such new Servicing
Transfer Event. If the Special Servicer is terminated, including pursuant to
Section 3.25, or resigns in accordance with Section 6.04, it shall retain the
right to receive any and all Workout Fees payable in respect of (i) any Mortgage
Loans for which it acted as Special Servicer that became Corrected Mortgage
Loans during the period that it acted as Special Servicer and that were still
Corrected Mortgage Loans at the time of such termination or resignation and (ii)
any Specially Serviced Mortgage Loans with respect to which it acted as Special
Servicer for which the Special Servicer has resolved the circumstances and/or
conditions causing any such Mortgage Loan to be a Specially Serviced Mortgage
Loan, but which had not as of the time it was terminated or resigned become a
Corrected Mortgage Loan solely because the related Borrower had not made three
consecutive timely Monthly Payments and which subsequently becomes a Corrected
Mortgage Loan as a result of the related Borrower making such three consecutive
timely Monthly Payments (and the successor Special Servicer will not be entitled
to any portion of such Workout Fees), in each case until the Workout Fee for any
such loan ceases to be payable in accordance with the preceding sentence;
provided that, in the case of any Specially Serviced Mortgage Loan described in
clause (ii) of this sentence, the terminated Special Servicer shall immediately
deliver the related Servicing File to the Master Servicer, and such Master
Servicer shall (without additional compensation) monitor that all conditions
precedent to such Mortgage Loan's becoming a Corrected Mortgage Loan are
satisfied and, further, shall immediately transfer such Servicing File to the
new Special Servicer if and when it becomes apparent to such Master Servicer
that such conditions precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property related thereto as to
which it receives any full, partial or discounted payoff from the related
Borrower or any Condemnation Proceeds or Liquidation Proceeds (other than any
Specially Serviced Mortgage Loan or REO Property that is (i) purchased by the
Special Servicer or any Holders of Certificate(s) of a Controlling Class or any
assignee of the foregoing pursuant to Section 3.18; provided that if any such
party assigns their Purchase Option to an unaffiliated third party without any
consideration therefor (other than nominal consideration), a Liquidation Fee
shall be payable, (ii) purchased by the Master Servicer, the Special Servicer or
any Certificateholder(s) of the Controlling Class pursuant to Section 9.01,
(iii) acquired by the Sole Certificateholder(s) in exchange for all the
Certificates pursuant to Section 9.01, (iv) purchased by the related B Loan
Holder pursuant to the related A/B Intercreditor Agreement so long as such
Specially Serviced Mortgage Loan or REO Property is purchased within 90 days of
the right to purchase arising (or any shorter time period specified in such
related A/B Intercreditor Agreement), (v) purchased by a mezzanine lender
pursuant to the terms of any related intercreditor agreement within 90 days (or
in the case of the 000-000 Xxxxx Xxxxxx mortgage loan, 120 days, or with respect
to any of the other loans, any shorter time frame as set forth in the related
intercreditor agreement) of such Mortgage Loan becoming a Specially Serviced
Mortgage Loan to the extent not collected from the related mezzanine lender
pursuant to the related intercreditor agreement or (vi) repurchased or replaced
no later than the end of the applicable Initial Resolution Period and any
applicable Resolution Extension Period, as a result of a Material Breach or a
Material Document Defect, by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement or by the Column Performance Guarantor pursuant
to the Column Performance Guarantee). As to each such Specially Serviced
Mortgage Loan or REO Property, the Liquidation Fee shall be payable out of, and
shall be calculated by application of the Liquidation Fee Rate to, any such
full, partial or discounted payoff, Condemnation Proceeds and/or Liquidation
Proceeds received or collected in respect thereof (other than any portion of
such payment or proceeds that represents Liquidation Expenses and Default
Charges). The Liquidation Fee with respect to any such Specially Serviced
Mortgage Loan will not be payable if such Mortgage Loan becomes a Corrected
Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of such Special Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided herein.
(d) Subject to offset as provided in Section 3.02(a), the Special
Servicer shall be entitled to receive the following items as additional special
servicing compensation with respect to the Specially Serviced Mortgage Loans or
REO Mortgage Loans and Performing Mortgage Loans for which it acts as Special
Servicer (the following items, collectively, the "Additional Special Servicing
Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Mortgage Loan or an REO Mortgage Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, modification fees, extension fees, consent fees, waiver fees,
earn-out fees and charges for beneficiary statements or demands that are
actually received on or with respect to Specially Serviced Mortgage Loans
or REO Mortgage Loans;
(iii) 50% of any and all Net Assumption Fees, Net Assumption
Application Fees, modification fees, extension fees, consent fees, waiver
fees and earn-out fees that are actually received on or with respect to a
Performing Mortgage Loan; and
(iv) interest or other income earned on deposits in the REO
Account maintained by such Special Servicer, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to the REO Account for each
Collection Period).
The Special Servicer shall be entitled to such compensation with
respect to the B Loans as is provided under the respective A/B Intercreditor
Agreements; provided that, in no such case, shall the payment of any such
compensation reduce amounts otherwise payable to the Certificateholders with
respect to the related A Loan.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to Specially
Serviced Mortgage Loans, such Master Servicer shall promptly pay such amounts to
the Special Servicer and shall not be required to deposit such amounts in its
Collection Account pursuant to Section 3.04(a).
(e) The Master Servicer and the Special Servicer shall be required
(subject to Section 3.11(h) below) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of any amounts due and owing to any of Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b), if
and to the extent such expenses are not payable directly out of a Collection
Account, A/B Loan Pair Custodial Account, Purchase Price Security Deposit
Account, Special Reserve Account, the Servicing Accounts, the Reserve Accounts
or the REO Account, and neither the Master Servicer nor the Special Servicer
shall be entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the discretion of the Special Servicer in
accordance with Section 3.19 or otherwise, such Special Servicer shall promptly
provide such Master Servicer with such documentation regarding the subject
Servicing Advance as the Master Servicer may reasonably request.
(f) Reserved.
(g) The Master Servicer, the Special Servicer and the Trustee
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of each Servicing Advance made thereby
(with its own funds), for so long as such Servicing Advance is outstanding. Such
interest with respect to any Servicing Advances shall be payable: (i) first, in
accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently
collected on or in respect of the particular Mortgage Loan or REO Mortgage Loan
as to which such Servicing Advance relates; and (ii) then, after such Servicing
Advance is reimbursed, but only if and to the extent that such Default Charges
are insufficient to cover such Advance Interest, out of general collections on
the Mortgage Loans and any REO Properties relating thereto, on deposit in the
Master Servicer's Collection Account. The Master Servicer shall reimburse
itself, the Special Servicer or the Trustee, as appropriate, for any Servicing
Advance made by any such Person with respect to any Mortgage Loan or REO
Property as to which such Master Servicer is the Master Servicer as soon as
practicable after funds available for such purpose are deposited in its
Collection Account. The Master Servicer shall not be entitled to Advance
Interest to the extent a payment is received but is being held by the Master
Servicer in suspense. The Master Servicer shall reimburse itself, the Special
Servicer or the Trustee, as the case may be, for any outstanding Servicing
Advance made by the Master Servicer, the Special Servicer or the Trustee as soon
as practically possible after funds available for such purpose are deposited in
the Collection Account; provided that, upon a determination that a previously
made Servicing Advance is a Nonrecoverable Servicing Advance with respect to any
Mortgage Loan or REO Mortgage Loan the Master Servicer may reimburse itself, the
Special Servicer or the Trustee, as applicable, immediately from general
collections in the Collection Account (such reimbursement to be deemed made
first out of amounts distributable as principal). Notwithstanding the foregoing,
instead of obtaining reimbursement out of general collections on the Mortgage
Pool immediately, if and to the extent that there are insufficient amounts that
would otherwise be distributable as principal to fully reimburse such
Nonrecoverable Servicing Advance, the Master Servicer, the Special Servicer or
the Trustee, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Servicing Advance over a period of time
(not to exceed 12 months), with interest thereon at the Reimbursement Rate
(except that at any time after such a determination to obtain reimbursement over
time in accordance with this proviso, the Master Servicer, the Special Servicer
or the Trustee, as applicable, may, in its sole discretion, decide to obtain
reimbursement from general collections on the Mortgage Pool immediately),
provided, however, that the Master Servicer, the Special Servicer or the
Trustee, as applicable, must reimburse itself to the extent of funds in the
Collection Account otherwise distributable as principal. The fact that a
decision to recover any Nonrecoverable Servicing Advance over time, or not to do
so, benefits some Classes of Certificateholders to the detriment of other
Classes shall not constitute a violation of the Servicing Standard by the Master
Servicer or the Special Servicer or a breach of any fiduciary duty owed to the
Certificateholders by the Trustee, or a breach of any other contractual
obligation owed to the Certificateholders by any party to this Agreement.
(h) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer or the Trustee shall be
required to make any Servicing Advance that it determines in its reasonable
judgment (in accordance with the Servicing Standard in the case of the Master
Servicer or Special Servicer) would constitute a Nonrecoverable Servicing
Advance. The determination by any Person with an obligation hereunder to make
Servicing Advances that it has made a Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be made by such Person in its reasonable judgment and
shall be evidenced by an Officer's Certificate delivered promptly to the
Depositor, the Trustee (unless it is the Person making such determination) and
the Controlling Class Representative setting forth the basis for such
determination, accompanied by a copy of an Appraisal of the related Mortgaged
Property or REO Property performed within the 12 months preceding such
determination, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that such Person
may have obtained and that support such determination.
In making such recoverability determination, such Person will be
entitled to (i) give due regard to the existence of any Nonrecoverable Advance
or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans,
the recovery of which, at the time of such consideration, is being deferred or
delayed by the Master Servicer, the Special Servicer or the Trustee, as
applicable, in light of the fact that proceeds on the related Mortgage Loan are
a source of recovery not only for the Servicing Advance under consideration, but
also as a potential source of recovery of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount which is being or may be deferred or
delayed and (ii) consider (among other things) the obligations of the Borrower
under the terms of the related Mortgage Loan (or the related A/B Loan Pair, as
applicable) as it may have been modified, (iii) consider (among other things)
the related Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) regarding the possibility and effects of future adverse changes with
respect to such Mortgaged Properties, (iv) estimate and consider (consistent
with the Servicing Standard in the case of the Master Servicer or the Special
Servicer) (among other things) future expenses and (v) estimate and consider
(among other things) the timing of recoveries.
If an Appraisal of the related Mortgaged Property shall not have
been obtained within the prior 12 month period (and the Master Servicer and the
Trustee shall each request any such appraisal from the Special Servicer prior to
ordering an Appraisal pursuant to this sentence) or if such an Appraisal shall
have been obtained but as a result of unforeseen occurrences, such Appraisal
does not, in the good faith determination of the Master Servicer, the Special
Servicer or the Trustee, reflect current market conditions, and the Master
Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on
the appropriate downward adjustment to such Appraisal, the Master Servicer, the
Special Servicer or the Trustee, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of the related Advance, obtain an Appraisal for such purpose
at the expense of the Trust Fund (and, in the case of any A/B Loan Pair, first
of the related B Loan Holders, if any, and second, to the extent such expense
remains unpaid, of the Trust Fund).
Notwithstanding the foregoing, the Trustee shall be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the Master Servicer or the Special Servicer with respect to a particular
Servicing Advance, and the Master Servicer and the Special Servicer shall each
be entitled to conclusively rely on any determination of nonrecoverability that
may have been made by the other such party with respect to a particular
Servicing Advance. A copy of any such Officer's Certificate (and accompanying
information) of the Master Servicer shall also be delivered promptly to the
Special Servicer, a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer, and a copy of any such Officer's Certificates (and accompanying
information) of the Trustee shall also be promptly delivered to the Master
Servicer and the Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved, shall) pay
directly out of its Collection Account, but only as and to the extent
contemplated by Section 3.05(a), any servicing expense that, if paid by such
Master Servicer or the Special Servicer, would constitute a Nonrecoverable
Servicing Advance; provided that such Master Servicer (or the Special Servicer,
if a Specially Serviced Mortgage Loan or an REO Property is involved) has
determined in accordance with the Servicing Standard that making such payment is
in the best interests of the Certificateholders (as a collective whole), as
evidenced by an Officer's Certificate delivered promptly to the Depositor, the
Trustee and the Controlling Class Representative, setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
delivered promptly to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer.
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 (but in any
event not later than 60 days) after the related Mortgage Loan becomes a
Specially Serviced Mortgage Loan (and, in cases where the related Mortgage Loan
has become a Specially Serviced Mortgage Loan, such Special Servicer shall
continue to perform or cause to be performed a physical inspection of the
subject Mortgaged Property at least once per calendar year thereafter for so
long as the related Mortgage Loan remains a Specially Serviced Mortgage Loan or
if such Mortgaged Property becomes an REO Property); provided that such Special
Servicer shall be entitled to reimbursement of the reasonable and direct
out-of-pocket expenses incurred by it in connection with each such inspection as
Servicing Advances. Beginning in 2007, the Master Servicer shall at its expense
perform or cause to be performed an inspection of each Mortgaged Property at
least once per calendar year (or, in the case of each Mortgage Loan with an
unpaid principal balance of under $2,000,000, once every two years), if the
Special Servicer has not already done so during that period pursuant to the
preceding sentence. The Master Servicer and the Special Servicer shall prepare
(and, promptly following preparation deliver to the Controlling Class
Representative and, with respect to the Special Servicer, to the Master
Servicer; provided, that such report, complete with photographs, shall be
delivered to the Controlling Class Representative upon request) a written report
of each such inspection performed by it or on its behalf that sets forth in
detail the condition of the Mortgaged Property and that specifies the occurrence
or existence of: (i) any sale, transfer or abandonment of the Mortgaged Property
of which such Master Servicer or Special Servicer, as applicable, is aware, (ii)
any change in the condition or occupancy of the Mortgaged Property of which such
Master Servicer or Special Servicer, as applicable, in accordance with the
Servicing Standard, is aware and that it considers material, or (iii) any waste
committed on the Mortgaged Property of which such Master Servicer or Special
Servicer, as the case may be, in accordance with the Servicing Standard, is
aware and that it considers material. The Master Servicer and the Special
Servicer shall deliver to the Trustee, upon written request, and the Controlling
Class Representative, a copy (or image in suitable electronic media) of each
such written report prepared by it (provided, that such report, complete with
photographs, shall be delivered to the Controlling Class Representative upon
request), within 30 days following the later of completion of the related
inspection if the inspection is performed by such Master Servicer or Special
Servicer, as applicable, or receipt of the related inspection report if the
inspection is performed by a third-party. Upon request, the Trustee shall
request from such Master Servicer or Special Servicer, as applicable, and, to
the extent such items have been delivered to the Trustee, upon written request,
by such Master Servicer or Special Servicer, as applicable, deliver to each of
the Depositor, the related Mortgage Loan Seller, any Certificateholder or, if
the Trustee has in accordance with Section 5.06(b) confirmed the Ownership
Interest in Certificates held thereby, any Certificate Owner, a copy (or image
in suitable electronic media) of each such written report prepared by the Master
Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended
September 30, 2006, the Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Master Servicer, in the case of each Performing Mortgage
Loan, shall make reasonable efforts to collect promptly from each related
Borrower quarterly and annual operating statements, budgets and rent rolls of
the related Mortgaged Property, and quarterly and annual financial statements of
such Borrower, whether or not delivery of such items is required pursuant to the
terms of the related Mortgage. In addition, the Special Servicer shall cause
quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
copies (or images in suitable electronic media) of all of the foregoing items so
collected or obtained by it to the Master Servicer, the Trustee and the
Controlling Class Representative within 30 days of its receipt thereof.
The Master Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Mortgaged Property and REO Property related
to each Mortgage Loan for which it acts as Master Servicer. Within 60 days after
receipt by the Master Servicer from the related Borrower or otherwise, as to a
Performing Mortgage Loan for which it acts as Master Servicer, and within 30
days after receipt by the Master Servicer from the Special Servicer or
otherwise, as to a Specially Serviced Mortgage Loan and REO Property for which
it acts as Master Servicer, of any annual operating statements or rent rolls
with respect to any Mortgaged Property or REO Property, such Master Servicer
shall, based upon such operating statements or rent rolls, prepare (or, if
previously prepared, update) the CMSA Operating Statement Analysis Report for
the subject Mortgaged Property or REO Property. The Master Servicer shall remit
a copy of each CMSA Operating Statement Analysis Report prepared or updated by
it (promptly following initial preparation and each update thereof), together
with, if so requested and not already provided pursuant to the preceding
paragraph, the underlying operating statements and rent rolls, to the Trustee,
the Special Servicer and the Controlling Class Representative. All CMSA
Operating Statement Analysis Reports shall be maintained by the Master Servicer
with respect to each Mortgaged Property and REO Property related to a Mortgage
Loan for which it acts as Master Servicer. The Trustee shall, upon request,
request from the Master Servicer (if necessary) and, to the extent such items
have been delivered to the Trustee by such Master Servicer, deliver to the
Controlling Class Representative, any Certificateholder or, if the Trustee has
in accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such CMSA Operating
Statement Analysis (or update thereof) and, if requested, the related operating
statement or rent rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Mortgage Loans and REO Properties
for which it acts as Special Servicer, 30 days) after receipt by the Master
Servicer of any quarterly or annual operating statements with respect to any
Mortgaged Property or REO Property, such Master Servicer shall prepare or update
and forward to the Trustee, the Special Servicer and the Controlling Class
Representative (in an electronic format reasonably acceptable to the Trustee and
such Special Servicer) a CMSA NOI Adjustment Worksheet for such Mortgaged
Property or REO Property, together with, if so requested, the related quarterly
or annual operating statements.
If, with respect to any Mortgage Loan (other than a Specially
Serviced Mortgage Loan), the Special Servicer has any questions for the related
Borrower based upon the information received by such Special Servicer pursuant
to Section 3.12(a) or 3.12(b), the Master Servicer shall, in this regard and
without otherwise changing or modifying its duties hereunder, reasonably
cooperate with such Special Servicer in assisting such Special Servicer to
contact and solicit information from such Borrower.
(c) Not later than 4:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicer, the Controlling Class Representative and
shall contemporaneously provide a copy of such materials as they relate to an A
Loan to the B Loan Holder the following reports (or data files relating to
reports of the Master Servicer) with respect to the Specially Serviced Mortgage
Loans serviced by such Special Servicer and any related REO Properties,
providing the required information as of such Determination Date: (i) a CMSA
Property File; and (ii) a CMSA Loan Periodic Update File (which, in each case,
if applicable, will identify each Mortgage Loan by loan number and property
name). At or before 4:00 p.m. (New York City time) on each Determination Date,
such Special Servicer shall prepare and deliver or cause to be delivered to the
Master Servicer the following reports or the related data fields reflected in
the reports reasonably requested with respect to the Specially Serviced Mortgage
Loans and any REO Properties, providing the information required of such Special
Servicer pursuant to Section 3.12(e) as of such Determination Date: (i) a CMSA
Delinquent Loan Status Report; (ii) a CMSA Comparative Financial Status Report;
(iii) a CMSA Historical Liquidation Report; (iv) a CMSA Historical Loan
Modification Report; and (v) a CMSA REO Status Report. In addition, the Special
Servicer shall from time to time provide the Master Servicer with such
information in such Special Servicer's possession regarding the Specially
Serviced Mortgage Loans for which it acts as Special Servicer and related REO
Properties as may be requested by the Master Servicer and is reasonably
necessary for such Master Servicer to prepare each report and any supplemental
information required to be provided by such Master Servicer to the Trustee.
(d) Not later than 1:00 p.m. (New York City time) on the second
Business Day following each Determination Date, the Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Trustee (and shall contemporaneously provide a copy of such materials and
related reports as they relate to an A Loan to the B Loan Holder), in a
computer-readable medium downloadable by the Trustee, each of the files and
reports comprising the CMSA Investor Reporting Package (other than the CMSA Loan
Periodic Update File , which shall be delivered as set forth in Section 4.02(b)
and excluding any CMSA Operating Statement Analysis Report, any CMSA NOI
Adjustment Worksheet, the CMSA Bond Level File, the CMSA Collateral Summary File
and the CMSA Loan Setup File), in each case providing the most recent
information with respect to the Mortgage Loans and REO Properties for which it
acts as Master Servicer as of the related Determination Date (and which, in each
case, if applicable, will identify each subject Mortgage Loan by loan number and
property name); provided that such Master Servicer shall not be required to
prepare and deliver any of the files and reports comprising the CMSA Investor
Reporting Package (other than the CMSA Loan Periodic Update File) before the
second Business Day following the third Determination Date following the Closing
Date.
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), available each month on such Master Servicer's Internet Website
only with the use of a password, in which case such Master Servicer shall
provide such password to (i) the other parties to this Agreement, who by their
acceptance of such password shall be deemed to have agreed not to disclose such
password to any other Person, (ii) the Rating Agencies and the Controlling Class
Representative, and (iii) each Certificateholder and Certificate Owner who
requests such password, provided that any such Certificateholder or Certificate
Owner, as the case may be, has delivered a certification substantially in the
form of Exhibit K-1 to the Trustee (with a copy to the Master Servicer). In
connection with providing access to the Master Servicer's Internet Website, such
Master Servicer may require registration and the acceptance of a disclaimer and
otherwise (subject to the preceding sentence) adopt reasonable rules and
procedures, which may include, to the extent such Master Servicer deems
necessary or appropriate, conditioning access on execution of an agreement
governing the availability, use and disclosure of such information, and which
may provide indemnification to such Master Servicer for any liability or damage
that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12(d),
in an electronic format reasonably acceptable to such Special Servicer, the
Master Servicer and the Trustee. 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 Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(d). In the case of information or reports to be furnished by the
Master Servicer to the Trustee pursuant to Section 3.12(d), to the extent that
such information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(b) or Section 3.12(c)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), such Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received the requisite information or reports from the
Special Servicer, and such Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(d) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(b) or Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent such Master Servicer or Special Servicer so
fails because such disclosure, in the reasonable belief of such Master Servicer
or Special Servicer as the case may be, would violate any applicable law or any
provision of a Mortgage Loan Document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Mortgage Loan Documents and the Servicing
Standard. The Master Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(g) The Depositor shall provide (or cause to be provided) to the
Master Servicer and the Trustee the initial data (as of the respective Due Dates
for the Original Mortgage Loans in June 2006 or the most recent earlier date for
which such data is available) contemplated by the CMSA Loan Setup File, the CMSA
Loan Periodic Update File, the CMSA Operating Statement Analysis Report and the
CMSA Property File. Absent manifest error of which it has actual knowledge, the
Master Servicer and the Special Servicer may conclusively rely (without
independent verification) on such information provided to it by the Depositor
(or such information which the Depositor has caused to be provided) and shall
not be responsible for the accuracy or completeness of any such information
supplied to it by the Depositor (or such information which the Depositor has
caused to be provided). Notwithstanding anything in this Agreement to the
contrary, the Master Servicer shall only be obligated to provide the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File to the extent that the initial data
contemplated in this Section 3.12(g) is provided to the Master Servicer by the
Depositor (or the Depositor has otherwise caused such information to be
provided).
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, such Master Servicer or Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on such Master Servicer's Internet Website or
the Trustee's Internet Website, unless this Agreement expressly specifies a
particular method of delivery. Notwithstanding the foregoing, the Trustee may
request delivery in paper format of any statement, report or information
required to be delivered to the Trustee and clause (z) shall not apply to the
delivery of any information required to be delivered to the Trustee unless the
Trustee consents to such delivery.
(i) The reporting obligations of the Master Servicer in connection
with an A Loan shall be construed to require such Master Servicer to provide
information regarding the related A Note only, but whenever such Master Servicer
remits funds to the B Loan Holder, it shall thereupon deliver to such holder a
remittance report identifying the amounts in such remittance. The Master
Servicer shall contemporaneously with any related delivery to the Trustee or the
Special Servicer, as applicable, provide any such reports which contain
information related to the related Mortgaged Property or financial information
regarding the borrower to the B Loan Holder. The Master Servicer shall, with the
reasonable cooperation of the other parties hereto, deliver to each B Loan
Holder all documents, statements, reports and information with respect to the
related B Loan and/or the related Mortgaged Property as may be required under
the related A/B Intercreditor Agreement.
Section 3.13 Reserved
Section 3.14 Reserved
Section 3.15 Access to Certain Information
(a) The Master Servicer and the Special Servicer shall afford to
the Trustee, the Depositor, each Rating Agency, the Controlling Class
Representative 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 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, the terms of the Mortgage Loan Documents or contract
entered into prior to the Closing Date 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 without charge but only upon
reasonable prior written request and during normal business hours at the offices
of such Master Servicer or such Special Servicer, as the case may be, designated
by it. The Master Servicer and the Special Servicer shall each be entitled to
affix a reasonable disclaimer to any information provided by it for which it is
not the original source (without suggesting liability on the part of any other
party hereto). In connection with providing access to such records to the
Controlling Class Representative, the Master Servicer and the Special Servicer
may require registration (to the extent access is provided via the Master
Servicer's Internet Website) and the acceptance of a reasonable and customary
disclaimer and otherwise adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer or the Special Servicer, as
applicable, deems necessary or appropriate, conditioning access on the execution
and delivery of an agreement governing the availability, use and disclosure of
such information.
(b) Neither of the Master Servicer or the Special Servicer shall
be liable for providing or disseminating information in accordance with the
terms of this Agreement.
(c) On a monthly basis at a time mutually agreed upon by the
Controlling Class Representative and the Master Servicer or the Special
Servicer, the Master Servicer and the Special Servicer shall, without charge,
make a knowledgeable Servicing Officer available, at the option of such
Controlling Class Representative either by telephone or at the office of such
Servicing Officer, to answer questions from such Controlling Class
Representative regarding the performance and servicing of the Mortgage Loans in
and/or REO Properties for which such Master Servicer or Special Servicer, as the
case may be, is responsible.
Section 3.16 Title to REO Property; REO Account
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders (and on behalf of the related B Loan Holder if such REO
Property is related to an A/B Loan Pair) or, subject to Section 3.09(b), to a
single member limited liability company of which the Trust is the sole member,
which limited liability company is formed or caused to be formed by the Special
Servicer at the expense of the Trust for the purpose of taking title to one or
more REO Properties pursuant to this Agreement. The limited liability company
shall be a manager-managed limited liability company, with the Special Servicer
to serve as the initial manager to manage the property of the limited liability
company, including any applicable REO Property, in accordance with the terms of
this Agreement as if such property was held directly in the name of the Trust or
Trustee under this Agreement (and for the benefit of the related B Loan Holder
if such REO Property is related to an A/B Loan Pair). The Special Servicer, on
behalf of the Trust (and for the benefit of the related B Loan Holder if such
REO Property is related to an A/B Loan Pair), shall sell any REO Property in
accordance with Section 3.18(d) and, in any event, by the end of the third
calendar year following the year in which the Trust acquires ownership of such
REO Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than 60 days prior to the expiration of such
liquidation period, and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third calendar year following
the year in which such acquisition occurred will not result in an Adverse REMIC
Event with respect to either Trust REMIC or an Adverse Grantor Trust Event with
respect to the Grantor Trust. Regardless of whether the Special Servicer applies
for or is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel referred to in
clause (ii) of such sentence, the Special Servicer shall act in accordance with
the Servicing Standard to liquidate such REO Property on a timely basis within a
customary and normal time frame for the sale of comparable properties. If the
Special Servicer is granted such REO Extension or obtains such Opinion of
Counsel, the Special Servicer shall (i) promptly forward a copy of such REO
Extension or Opinion of Counsel to the Trustee, and (ii) sell such REO Property
within such extended period as is permitted by such REO Extension or
contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be paid by and reimbursable to the Master
Servicer as a Servicing Advance.
(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 "REO Account"), to be held on behalf of the Trustee (as
holder of the Uncertificated Lower-Tier Interests) in trust for the benefit of
the Certificateholders (and on behalf of the related B Loan Holder if such REO
Property is related to an A/B Loan Pair), for the retention of revenues and
other proceeds derived from each REO Property. Each account that constitutes the
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, within two Business Days following
receipt, all REO Revenues, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of an REO Property. Funds in the REO
Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from the REO
Account to pay itself, as Additional Special Servicing Compensation, interest
and investment income earned in respect of amounts held in the REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the other parties hereto of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the 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
the REO Account relating to such REO Property. Within two Business Days
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Collection Account (or, if the subject
REO Property relates to an A/B Loan Pair, into the related A/B Loan Pair
Custodial Account) or deliver to the Master Servicer (which shall deposit such
amounts into the Collection Account) (or, if the subject REO Property relates to
an A/B Loan Pair, into the related A/B Loan Pair Custodial Account) 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 and Section 3.17 below; provided that the Special
Servicer may retain in the REO Account such portion of such 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 the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period.
(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, the REO Account pursuant to Section 3.16(b) or
3.16(c).
Section 3.17 Management of REO Property
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, 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. If the
Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
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"), such Mortgaged Property may be Directly
Operated by the Special Servicer as REO Property (other than holding such
REO Property primarily for sale to customers (other than the sale of REO
Property pursuant to Section 3.18), or the performance of any
construction work thereon) by such 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 such
Special Servicer may (provided that in the judgment of such Special
Servicer, exercised in accordance with the Servicing Standard, it is
commercially reasonable) so lease or otherwise operate such REO Property
or, in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will
offset any REO Tax and will maximize the net recovery from the REO
Property to the Certificateholders then the Special Servicer may so
operate the 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 no commercially reasonable means exists to operate such property as
REO Property without the Trust incurring or possibly incurring an REO Tax
on income from such property, such Special Servicer shall deliver to the
Trustee and the Controlling Class Representative, in writing, a proposed
plan (the "Proposed Plan") to manage such property as REO Property. Such
plan shall include potential sources of income and good faith estimates
of the amount of income from each such source. Within a reasonable period
of time after receipt of such plan, the Trustee shall consult with such
Special Servicer and shall advise such Special Servicer of the Trust's
federal income tax reporting position with respect to the various sources
of income that the Trust would derive under the Proposed Plan. In
addition, the Trustee shall (to the maximum extent reasonably possible)
advise such Special Servicer of the estimated amount of taxes that the
Trust 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 Trustee, such Special Servicer shall either (A)
implement the Proposed Plan (after acquiring the respective Mortgaged
Property as REO Property) or (B) manage and operate such property in a
manner that would not result in the imposition of an REO Tax on the
income derived from such property.
The Special Servicer's decision as to how each REO Property shall
be managed and operated shall, subject to Section 3.17(b), be in accordance with
the Servicing Standard. Neither the Special Servicer nor the Trustee shall be
liable to the Certificateholders, the Trust, the other parties hereto or each
other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of an
REO Property pursuant to the terms and subject to the conditions of Section
3.18.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders (and for the benefit of the holder of the B Loan Holder
if such REO Property is related to an A/B Loan Pair) solely for the purpose of
its prompt disposition and sale in accordance with Section 3.18, in a manner
that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code for purposes of
Section 860D(a) of the Code or, except as contemplated by Section 3.17(a),
result in the receipt by either Trust REMIC of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code, in an Adverse
REMIC Event with respect to any Trust REMIC or in an Adverse Grantor Trust Event
with respect to the Grantor Trust. 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 REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation, management, maintenance and disposition of such REO
Property, including:
(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 other costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account with
respect to any REO Property are insufficient for the purposes contemplated by
the preceding sentence with respect to such REO Property, the Master Servicer
shall, at the direction of the Special Servicer, make a Servicing Advance of
such amounts as are necessary for such purposes unless such Master Servicer or
such Special Servicer determines, in its reasonable judgment, that such advances
would, if made, be Nonrecoverable Servicing Advances; provided, however, that
such Master Servicer may in its sole discretion make any such Servicing Advance
without regard to recoverability (and be reimbursed for such Advance as a
Nonrecoverable Advance) if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the repair or maintenance thereof or the completion of a
building or other improvement thereon, and then only if more than 10% of
the construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all within
the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as provided for in Section 3.17(a)(i) and (a)(ii)
above, Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance unless non-recoverable) to the effect that such action will not cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code at any time that it is held by the
Trust Fund, in which case the Special Servicer may take such actions as are
specified in such Opinion of Counsel. Except as limited above in this Section
3.17 and by Section 3.17(d), the Special Servicer shall be permitted to cause
the Trust Fund to earn "net income from foreclosure property," subject to the
Servicing Standard.
(d) The Special Servicer may, and if so required for any REO
Property to qualify or remain qualified as "foreclosure property" within the
meaning of Section 860G(a)(8), shall contract with any Independent Contractor
for the operation and management of any REO Property related to a Mortgage Loan
for which it acts as Special Servicer, 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) shall be reasonable and customary in consideration
of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including those listed in Section
3.17(b) above, and (B) remit all related revenues collected (net of its
fees and such costs and expenses) to such 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 such Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) such 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 such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be paid by and reimbursable to the Master Servicer as a Servicing Advance.
Section 3.18 Fair Value Purchase Option; Sale of REO Properties
(a) The Special Servicer may sell or purchase, or permit the sale
or purchase of, a Mortgage Loan or 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 Section 2.03 and Section 9.01 of this Agreement; the
Mortgage Loan Purchase Agreement; the Column Performance Guarantee; the related
Mortgage Loan Documents and/or, any related intercreditor, co-lender and/or
similar agreement(s).
(b) If any Mortgage Loan becomes a Defaulted Mortgage Loan, then
the Special Servicer shall promptly so notify in writing the Trustee, the Master
Servicer and the Series 2006-C3 Controlling Class Representative, and with
respect to any related B Loan of a A/B Loan Pair, any related B Loan Holder(s).
The Series 2006-C3 Controlling Class Representative and the Special Servicer, in
that order of priority, may, at its option, purchase any Defaulted Mortgage Loan
out of the Trust Fund at a cash price equal to the applicable Purchase Price.
The Series 2006-C3 Controlling Class Representative may, after receipt of the
notice described in the first sentence of this Section 3.18(b), assign its
option under the preceding sentence to any party (including, without limitation,
in connection with an A Loan, any related B Loan Holder), other than to a Person
whose purchase of the related Mortgage Loan would violate the terms of any
related Intercreditor Agreement or Mezzanine Loan intercreditor agreement;
provided that the Series 2006-C3 Controlling Class Representative, in connection
therewith, shall deliver to the Trustee and the Special Servicer a copy of the
related written assignment executed by the Series 2006-C3 Controlling Class
Representative, provided, further, that with respect to any A Loan, the option
holder's rights under this Section 3.18(b) are subject to the rights of the
holder of the related B Loan to purchase such A Loan pursuant to the terms of a
related Intercreditor Agreement or by a Mezzanine Loan Holder pursuant to the
related Mezzanine Loan intercreditor agreement. The option with respect to an A
Loan shall terminate upon the purchase of such A Loan by the holder of the
related B Loan pursuant to the related Intercreditor Agreement or by a Mezzanine
Loan Holder pursuant to the related Mezzanine Loan intercreditor agreement. The
applicable Purchase Price for any Defaulted Mortgage Loan purchased under this
Section 3.18(b) shall be deposited into the Collection Account, and the Trustee,
upon receipt of a written notice from the Master Servicer to the effect that
such deposit has been made, shall release or cause to be released to the Person
effecting such purchase (or to its designee) the related Mortgage File, and
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 Person effecting such purchase (or its designee) ownership of
such Mortgage Loan. In connection with any such purchase, the Special Servicer
shall deliver the related Servicing File to the Person effecting such purchase
(or to its designee).
If not exercised sooner, such purchase option with respect to any
Defaulted Mortgage Loan will automatically terminate upon (i) the related
Borrower's (or, subject to the related Intercreditor Agreement, any B Loan
Holder's) cure of all defaults on the Defaulted Mortgage Loan, (ii) the
acquisition on behalf of the Trust of title to the related Mortgaged Property by
foreclosure or deed in lieu of foreclosure or (iii) the modification, waiver or
pay-off (full or discounted) of the Defaulted Mortgage Loan in connection with a
workout.
The applicable Purchase Price for any Defaulted Mortgage Loan
purchased under this Section 3.18(b) shall, (i) pending determination of the
Fair Value thereof pursuant to the succeeding sentence, be the Purchase Price
calculated in accordance with the definition of Purchase Price, and (ii)
following determination of the Fair Value pursuant to the succeeding sentence,
be the Fair Value. The Special Servicer shall promptly obtain an Appraisal
(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), and shall, within 60
days following the date it receives an Appraisal following the date on which a
Mortgage Loan becomes a Defaulted Mortgage Loan, determine the fair value
thereof in accordance with the Servicing Standard (the "Fair Value"). 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 related Mortgaged Property is located, and the time and expense associated
with a purchaser's foreclosing on the related Mortgaged Property and the
expected recoveries from such Defaulted Mortgage Loan if the Special Servicer
were to pursue a workout or foreclosure strategy instead of selling such
Defaulted Mortgage Loan pursuant to the subject purchase option. In addition,
the Special Servicer shall refer to all relevant information contained in the
Servicing File, including the most recent Appraisal obtained or conducted with
respect to the related Mortgaged Property and 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 based on the Appraisal. The Special Servicer may, to the
extent it is consistent with the Servicing Standard, rely on any opinions or
reports of Independent third parties in making such determination. All
reasonable costs and expenses incurred by the Special Servicer pursuant to this
Section 3.18(b) shall be paid by and reimbursable to the Master Servicer as
Servicing Advances. The other parties to this Agreement shall cooperate with all
reasonable requests for information made by a Special Servicer in order to allow
such Special Servicer to perform its duties pursuant to this Section 3.18(b).
The Special Servicer must give prompt written notice of its Fair Value
determination to the Trustee, the Master Servicer and the Series 2006-C3
Controlling Class Representative.
The Special Servicer shall be required to change from time to time
thereafter 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. If the most recent Fair Value calculation was made
more than 90 days prior to the exercise date of a purchase option (under this
Section 3.18(b) or Section 3.18(c), then the Special Servicer shall confirm or
revise the Fair Value determination, which Fair Value may be higher or lower.
In the event that the Special Servicer or any affiliate of the
Special Servicer exercises the purchase option (under this Section 3.18(b) or
Section 3.18(c) with respect to any Defaulted Mortgage Loan, including as the
Series 2006-C3 Controlling Class Representative or as the assignee thereof, then
the Master Servicer or, if the Master Servicer is also the Special Servicer or
an affiliate of the Special Servicer, the Trustee shall determine whether the
Special Servicer's determination of Fair Value for a Defaulted Mortgage Loan is
no less than the amount that the Master Servicer or the Trustee, as applicable,
considers to be the Fair Value of such Defaulted Mortgage Loan. In such event,
the Special Servicer shall promptly deliver to the Master Servicer or the
Trustee, as applicable, in accordance with the foregoing sentence, the most
recent related Appraisal then in the Special Servicer's possession, together
with such other third-party reports and other information then in the Special
Servicer's possession that is relevant to the confirmation of the Special
Servicer's determination of Fair Value, including information regarding any
change in circumstance regarding the Defaulted Mortgage Loan known to the
Special Servicer that has occurred subsequent to, and that would materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Notwithstanding the foregoing, the Master Servicer or the
Trustee, as the case may be, may (at its option) designate an Independent
Qualified Appraiser, selected with reasonable care by the Master Servicer or the
Trustee, as the case may be, to confirm that the Special Servicer's
determination of Fair Value is consistent with or greater than what the
Independent Qualified Appraiser considers to be the Fair Value of such Defaulted
Mortgage Loan. In that event, the Master Servicer or Trustee, as applicable,
will be entitled to rely upon such Independent Qualified Appraiser's
determination. The Master Servicer or Trustee, as applicable, shall be entitled
to a fee of $2,500 in connection with each such Fair Value determination. The
costs of all third party opinions of value and any Appraisals and inspection
reports incurred by the Master Servicer or Trustee, as the case may be, as
contemplated by this paragraph shall be advanced by the Master Servicer or
Trustee, as the case may be, and will constitute, and be reimbursable as, a
Servicing Advance.
Unless and until the purchase option granted hereunder with
respect to a Defaulted Mortgage Loan is exercised, the Special Servicer will be
required to pursue such other resolution strategies available hereunder,
including workout and foreclosure, consistent with the Servicing Standard, but
the Special Servicer will not be permitted to sell the Defaulted Mortgage Loan
other than pursuant to the exercise of such purchase option or as otherwise
permitted under Section 3.18(a).
If the purchase option with respect to any Defaulted Mortgage Loan
is not exercised by the Majority Controlling Class Certificateholder or any
assignee thereof within 30 days after the Fair Value of such Mortgage Loan has
initially been established as provided in Section 3.18(b) above, then the
Majority Controlling Class Certificateholder shall be deemed to have assigned
such Purchase Option, for a 30 day period only, to the applicable Special
Servicer. During the 30 day period following the assignment to it of the
purchase option with respect to any Defaulted Mortgage Loan, the Special
Servicer will be entitled to exercise such purchase option or to assign such
purchase option to a third party other than the Depositor, Column Financial or
one of their respective Affiliates and/or agents (provided that the other
parties hereto are notified in writing of the assignment). If the purchase
option with respect to any Defaulted Mortgage Loan is not exercised by the
Special Servicer or its assignee within the 30 day period following the
assignment of such purchase option to the applicable Special Servicer as
contemplated by clause (iii) above, then such purchase option will automatically
revert to the Majority Controlling Class Certificateholder. The cash price paid
for any such Mortgage Loan purchased under this Section 3.18 shall be paid to
the Master Servicer within 10 Business Days following the date notice is
received that the option is exercised and shall be deposited into the Collection
Account, and the Trustee, upon receipt of written notice from the Master
Servicer to the effect that such deposit has been made, shall release or cause
to be released to the Special Servicer (or the designated Affiliate thereof), as
applicable, the related Mortgage File, and 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 Special Servicer
(or the designated Affiliate thereof), as applicable, the ownership of such
Mortgage Loan. Nothing in this Section 3.18(c) shall be deemed to limit the
ability of any B Loan Holder to purchase the related A loan in accordance with
the related Intercreditor Agreement.
(c) The Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to solicit cash bids for each REO
Property in such manner as will be reasonably likely to realize a fair price
(determined pursuant to Section 3.18(e) below) for any REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period provided for by Section 3.16(a). Such Special
Servicer shall accept the first (and, if multiple cash bids are received by a
specified bid date, the highest) cash bid received from any Person that
constitutes a fair price (determined pursuant to Section 3.18(e) below) for such
REO Property. If such Special Servicer reasonably believes that it will be
unable to realize a fair price (determined pursuant to Section 3.18(e) below)
with respect to any REO Property within the time constraints imposed by Section
3.16(a), then such Special Servicer shall, consistent with the Servicing
Standard and subject to Section 3.24, dispose of such REO Property upon such
terms and conditions as it shall deem necessary and desirable to maximize the
recovery thereon under the circumstances.
The Special Servicer shall give the Trustee, the Master Servicer
and the Controlling Class Representative not less than five (5) Business Days'
prior written notice of its intention to sell any REO Property pursuant to this
Section 3.18(d). No Interested Person shall be obligated to submit a bid to
purchase any REO Property, and notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any REO
Property for purposes of Section 3.18(d), shall be determined by the Special
Servicer or, if such cash bid is from an Interested Person, by the Trustee. In
determining whether any bid received from an Interested Person represents a fair
price for any REO Property, the Trustee shall be supplied with and shall be
entitled to rely on the most recent Appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such Appraisal or if there has been a material change
at the subject property since any such Appraisal, on a new Appraisal to be
obtained by the Special Servicer, the cost of which shall be paid by and
reimbursable to the Master Servicer as a Servicing Advance). The appraiser
conducting any such new Appraisal shall be a Qualified Appraiser that is (i)
selected by the Special Servicer if neither such Special Servicer nor any
Affiliate thereof is bidding with respect to the subject REO Property and (ii)
selected by the Trustee if either such Special Servicer or any Affiliate thereof
is so bidding. Where any Interested Person is among those bidding with respect
to any REO Property, the Special Servicer shall require that all bids be
submitted to it (or, if such Special Servicer is bidding, be submitted to the
Trustee) in writing and be accompanied by a refundable deposit of cash in an
amount equal to 5% of the bid amount. In determining whether any bid from a
Person other than an Interested Person constitutes a fair price for any REO
Property, such Special Servicer shall take into account the results of any
Appraisal or updated Appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the prior twelve (12) months, as well
as, among other factors, the occupancy level and physical condition of the REO
Property, the state of the then current local economy and commercial real estate
market where the REO Property is located and the obligation to dispose of any
REO Property within a customary and normal time frame for the sale of comparable
properties (and, in any event, within the time period specified in Section
3.16(a). The Purchase Price for any REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the Special Servicer or any Affiliate thereof shall constitute a fair
price for any REO Property unless such bid is the highest cash bid received and
at least two Independent bids (not including the bid of such Special Servicer or
any Affiliate) have been received. In the event the bid of the Special Servicer
or any Affiliate thereof is the only bid received or is the higher of only two
bids received, then additional bids shall be solicited. If an additional bid or
bids, as the case may be, are received for any REO Property and the original bid
of such Special Servicer or any Affiliate thereof is the highest of all cash
bids received, then the bid of such Special Servicer or such Affiliate shall be
accepted, provided that the Trustee has otherwise determined, as provided above
in this Section 3.18(e), that such bid constitutes a fair price for the subject
REO Property. Any bid by the Special Servicer for any REO Property shall be
unconditional; and, if accepted, the subject REO Property shall be transferred
to such Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
real property.
(e) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating with Independent
third parties in connection with the sale of any REO Property and taking any
other action necessary or appropriate in connection with the sale of any
Defaulted Mortgage Loan or REO Property, and the collection of all amounts
payable in connection therewith. In connection with the sale of any REO
Property, the Special Servicer may charge prospective bidders, and may retain,
fees that approximate such Special Servicer's actual costs in the preparation
and delivery of information pertaining to such sales or evaluating bids without
obligation to deposit such amounts into a Collection Account. Any sale of a
Defaulted Mortgage Loan or any REO Property shall be final and without recourse
to the Trustee or the Trust, and if such sale is consummated in accordance with
the terms of this Agreement, neither the Special Servicer nor the Trustee shall
have any liability to any Certificateholder with respect to the purchase price
therefor accepted by such Special Servicer or the Trustee.
(f) Any sale of any Defaulted Mortgage Loan or REO Property shall
be for cash only.
(g) The purchase price for any Defaulted Mortgage Loan or REO
Property sold under this Section 3.18 shall be deposited into the Master
Servicer's Collection Account, and the Trustee, upon receipt of written notice
from such Master Servicer to the effect that such deposit has been made (based
upon notification by the Special Servicer to such Master Servicer of the amount
of the purchase price), 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 ownership of such Mortgage Loan or REO Property in
the Person who purchased such Mortgage Loan or REO Property.
(h) The parties hereto acknowledge the purchase option of each B
Loan Holder with respect to the related A Loan provided for in the related A/B
Intercreditor Agreement. The purchase price paid by any B Loan Holder for the
related A Loan in accordance with such purchase option shall be deposited into
the Collection Account, and the Trustee, upon receipt of written notice from the
Master Servicer to the effect that such deposit has been made, 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
ownership of such Mortgage Loan in the related B Loan Holder.
Section 3.19 Additional Obligations of Master Servicer
(a) The Master Servicer shall deliver to the Trustee for deposit
in the Distribution Account by 1:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the lesser of
(i) the aggregate amount of Prepayment Interest Shortfalls incurred in
connection with Principal Prepayments received in respect of Performing Mortgage
Loans during the most recently ended Collection Period (other than as a result
of the receipt of Insurance Proceeds and/or Condemnation Proceeds), and (ii) the
aggregate of (A) with respect to such of those Prepayment Interest Shortfalls
incurred, that portion of such Master Servicer's Master Servicing Fees for the
related Collection Period that is, in the case of each and every Mortgage Loan
and REO Mortgage Loan for which such Master Servicing Fees are being paid in
such Collection Period, calculated at 0.005% (one-half of one basis point) per
annum, and (B) all Prepayment Interest Excesses received by such Master Servicer
during the most recently ended Collection Period; provided, however, that if a
Prepayment Interest Shortfall occurs as a result of the Master Servicer's
allowing the related Borrower to deviate from the terms of the related Mortgage
Loan Documents regarding Principal Prepayments (other than (X) subsequent to a
material default under the related Mortgage Loan Documents, (Y) pursuant to
applicable law or a court order, or (Z) at the request or with the consent of
the Controlling Class Representative), then, the amount specified in clause
(ii)(A) above shall be an amount equal to the entire Master Servicing Fee with
respect to such Collection Period.
(b) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and such Master Servicer shall be
obligated, out of such Master Servicer's own funds, to reimburse such Special
Servicer for any Servicing Advances (other than Nonrecoverable Servicing
Advances) made by but not previously reimbursed to such Special Servicer,
together with interest thereon at the Reimbursement Rate from the date made to,
but not including, the date of reimbursement, upon such Special Servicer
providing an Officer's Certificate to the Master Servicer setting forth the
details of the Servicing Advance upon which such Master Servicer shall
conclusively rely in reimbursing the Special Servicer. Such reimbursement and
any accompanying payment of interest shall be made within ten Business Days of
the written request therefor by wire transfer of immediately available funds to
an account designated by such Special Servicer. Upon the Master Servicer's
reimbursement to the Special Servicer of any Servicing Advance and payment to
such Special Servicer of interest thereon, all in accordance with this Section
3.19(b), such Master Servicer shall for all purposes of this Agreement be deemed
to have made such Servicing Advance at the same time as such Special Servicer
actually made such Servicing Advance, and accordingly, such Master Servicer
shall be entitled to reimbursement for such Servicing Advance, together with
interest thereon in accordance with Sections 3.05(a) and 3.11(g), at the same
time, in the same manner and to the same extent as such Master Servicer would
otherwise have been entitled if it had actually made such Servicing Advance at
the time such Special Servicer did.
Notwithstanding anything to the contrary contained in any other
Section of this Agreement, if the Special Servicer is required under this
Agreement (but subject to the following paragraph), to make any Servicing
Advance but does not desire to do so, such Special Servicer may, in its sole
discretion, request that the Master Servicer make such Servicing Advance. Any
such request shall be made, in writing, in a timely manner that does not
adversely affect the interests of any Certificateholder (and, in any event, at
least five Business Days in advance of the date on which the subject Servicing
Advance is to be made) and shall be accompanied by such information and
documentation regarding the subject Servicing Advance as such Master Servicer
may reasonably request; provided, however, that such Special Servicer shall not
be entitled to make such a request (other than for emergency advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer shall have the obligation
to make any such Servicing Advance (other than a Nonrecoverable Servicing
Advance) that it is so requested by such Special Servicer to make, by payment of
such amount to such Special Servicer within five Business Days of such Master
Servicer's receipt of such request. Such Special Servicer shall then be
responsible for disbursing such amounts to the appropriate payees. Subject to
the preceding sentence, if the request is timely and properly made, such Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it so requests the Master Servicer to make (regardless of whether
or not the Master Servicer shall make such Servicing Advance). The Master
Servicer shall be entitled to reimbursement for any Servicing Advance made by it
at the direction of the Special Servicer, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same
manner and to the same extent as such Master Servicer is entitled with respect
to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b),
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to make at the direction of the Special Servicer, any Servicing Advance if
such Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by such Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
Such Master Servicer shall notify such Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to such Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger
Event with respect to any Mortgage Loan, the Special Servicer shall obtain (or,
if such Mortgage Loan has a Stated Principal Balance of $2,000,000 or less,
unless the Controlling Class Representative permits the Special Servicer to
obtain an Appraisal, conduct) an Appraisal of the related Mortgaged Property,
unless an Appraisal thereof had previously been obtained (or, if applicable,
conducted) within the preceding 12-month period and there has been no subsequent
material change in the circumstances surrounding the related Mortgaged Property
that, in the judgment of the Special Servicer, would materially affect the value
of the property in the earlier Appraisal, and shall deliver a copy of such
Appraisal to the Trustee, the Master Servicer and the Controlling Class
Representative. If such Appraisal is obtained from a Qualified Appraiser, the
cost thereof shall be paid by and reimbursable to the Master Servicer as a
Servicing Advance. Promptly following the receipt of, and based upon, such
Appraisal, such Special Servicer shall determine and report to the Trustee and
the Master Servicer and the Controlling Class Representative the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a
Required Appraisal Loan, the Special Servicer shall, within 30 days of each
anniversary of such loan's having become a Required Appraisal Loan, obtain (or,
if such Required Appraisal Loan has a Stated Principal Balance of $2,000,000 or
less, at its discretion, unless the Controlling Class Representative objects,
conduct) an update of the prior Appraisal. If such update is obtained from a
Qualified Appraiser, the cost thereof shall be paid by and reimbursable to the
Master Servicer as a Servicing Advance. Promptly following the receipt of, and
based upon, such update, such Special Servicer shall redetermine, in
consultation with the Controlling Class Representative, and report to the
Trustee and the Master Servicer the then applicable Appraisal Reduction Amount,
if any, with respect to the subject Required Appraisal Loan.
The Controlling Class Representative shall have the right at any
time within six months of the date of the receipt of any Appraisal to require
that the Special Servicer obtain a new Appraisal of the subject Mortgaged
Property in accordance with MAI standards, at the expense of the Controlling
Class Certificateholders, and upon receipt of such Appraisal the Special
Servicer shall redetermine the Appraisal Reduction Amount.
(d) The Master Servicer shall pay, without any right of
reimbursement therefor, the post-Closing Date fees of the Rating Agencies for
ongoing surveillance of the Rated Certificates; provided that the Master
Servicer shall not be required to pay without reimbursement the fees charged by
any Rating Agency for a confirmation as to the lack of an Adverse Rating Event
with respect to any Class of Rated Certificates in connection with any other
particular matter, unless the Master Servicer has failed to use efforts
consistent with the Servicing Standard to collect such fees from the Borrower,
which shall include, if it has the right to do so under the applicable Mortgage
Loan, conditioning its consent or approval on such payment by the Borrower
unless such condition would be a violation of applicable law or the Servicing
Standard.
(e) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
or Yield Maintenance Charge, as the case may be, payable under the terms of the
related Mortgage Note. Promptly following its determination thereof, such Master
Servicer shall disclose to the Trustee and, upon request, any Certificateholder
its calculation of any such Prepayment Premium or Yield Maintenance Charge,
including, in the case of a Yield Maintenance Charge, the U.S. Treasury rate
and, if different, the discount rate used to calculate such Yield Maintenance
Charge.
(f) With respect to each Mortgage Loan that provides for
defeasance, the Master Servicer shall, to the extent permitted by the terms of
such Mortgage Loan, require the related Borrower (i) to provide replacement
collateral consisting of government securities within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Loan (or defeased portion thereof) when
due (and assuming, in the case of an ARD Mortgage Loan, to the extent consistent
with the related loan documents, that such Mortgage Loan matures on its
Anticipated Repayment Date), (ii) to deliver a certificate from an independent
certified public accounting firm certifying that the replacement collateral is
sufficient to make such payments, (iii) at the option of the Master Servicer, to
designate a single purpose entity (which may be a subsidiary of such Master
Servicer established for the purpose of assuming all defeased Mortgage Loans) to
assume the Mortgage Loan (or defeased portion thereof) and own the defeasance
collateral and, if the subject Mortgage Loan has a Cut-off Date Principal
Balance equal to or greater than $5,000,000, and, if the related Mortgage Loan
Documents permit the lender to require or expressly requires the borrower to
provide an opinion of Counsel to the effect that such entity will not be
consolidated with its principals; provided, that if the subject Mortgage Loan
has a Cut-off Date Principal Balance less than $5,000,000 and the related
Mortgage Loan Documents do not require the related Borrower to pay for, or do
not permit the lender to require such Opinion of Counsel, such requirement shall
be waived, (iv) to implement such defeasance only after the second anniversary
of the Closing Date, (v) to provide an Opinion of Counsel that the Trustee has a
perfected, first priority security interest in the new collateral, and (vi) in
the case of a partial defeasance of the Mortgage Loan, to defease a principal
amount equal to at least 125% of the allocated loan amount for the Mortgaged
Property or Properties to be released. If the subject Mortgage Loan has a
Cut-off Date Principal Balance less than $20,000,000 and an outstanding
principal balance less than 2% of the then aggregate Stated Principal Balance of
the Mortgage Pool, and if either the terms of the Mortgage Loan permit the
Master Servicer to impose the foregoing requirements or such Master Servicer
satisfies such requirements on its own, then confirmation that such defeasance
will not result in an Adverse Rating Event is not required so long as the Master
Servicer delivers to S&P a certification in the form attached hereto as Exhibit
N. In such case, the Master Servicer shall provide the Rating Agencies and the
Controlling Class Representative with notice that the foregoing requirements
have been met. However, if the subject Mortgage Loan has a Cut-off Date
Principal Balance greater than or equal to $20,000,000 or an outstanding
principal balance greater than or equal to 2% of the aggregate Stated Principal
Balance of the Mortgage Pool, or if the terms of the Mortgage Loan do not permit
such Master Servicer to impose such requirements and such Master Servicer does
not satisfy such requirements on its own, then such Master Servicer shall so
notify the Rating Agencies and the Controlling Class Representative and, so long
as such a requirement would not violate applicable law or the Servicing
Standard, obtain a confirmation that such defeasance will not result in an
Adverse Rating Event. Subject to the related Mortgage Loan Documents and
applicable law, the Master Servicer shall not execute a defeasance unless (i)
the Mortgage Loan requires the Borrower to pay all Rating Agency fees associated
with defeasance (if Rating Agency confirmation of no-downgrade is a specific
condition precedent thereto) and all expenses associated with defeasance or
other arrangements for payment of such costs are made at no expense to the Trust
Fund or the Master Servicer (provided, however, that in no event shall such
proposed "other arrangements" result in any liability to the Trust Fund
including any indemnification of the Master Servicer or the Special Servicer
which may result in legal expenses to the Trust Fund), and (ii) the Borrower is
required to provide all Opinions of Counsel, including Opinions of Counsel that
the defeasance will not cause an Adverse REMIC Event or an Adverse Grantor Trust
Event and that the Mortgage Loan Documents are fully enforceable in accordance
with their terms (subject to bankruptcy, insolvency and similar standard
exceptions), and any applicable rating confirmations.
(g) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Borrower under a Ground Lease, promptly
(and in any event within 45 days) after the Closing Date notify the related
ground lessor of the transfer of such Mortgage Loan to the Trust pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to such Master Servicer.
(h) If a Mortgage Loan provides or allows that the related
Borrower's failure to make any Monthly Payment due thereunder on the applicable
Due Date will not result in an event of default for which such Mortgage Loan may
be accelerated and/or accrue Default Charges unless and until the Master
Servicer notifies such Borrower of the failure or the elapse of a specified
number of days following such Master Servicer's delivery of such notice, then
such Master Servicer shall promptly (and in any event within two Business Days
following the applicable Due Date) notify the related Borrower of such a
failure.
(i) With respect to the Mortgage Loan identified as Xxxxxxx &
Xxxxx FX2, to the extent the related loan documents permit the lender to
exercise its sole discretion and approve substitutions of property in excess of
35% of the original allocated loan amounts, neither the Master Servicer nor the
Special Servicer shall consent to any such substitution (and failure to consent
shall not be a violation of the Servicing Standard) unless such party receives
an Opinion of Counsel that such consent would not constitute a "significant
modification" of such Mortgage Loan pursuant to Treasury Regulations Section
1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with
respect to either Trust REMIC.
(j) To the extent not inconsistent with the related Mortgage Loan
Documents, the Master Servicer or Special Servicer shall not consent to a change
in the property manager with respect to a property securing a Mortgage Loan that
is one of the ten largest Mortgage Loans (which term shall, for the purposes of
this Section 3.29(e), include groups of Crossed Mortgage Loans and groups of
Mortgage Loans made to affiliated Borrowers) by outstanding principal balance at
such time or that has a then-current principal balance of greater than
$35,000,000, unless it obtains confirmation from S&P that the appointment of
such new property manager would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings on any Class of
Certificates. The Master Servicer or Special Servicer, as applicable, shall
require the related Borrower to pay the costs of such confirmation unless
specifically precluded from doing so by the applicable loan documents.
Section 3.20 Modifications, Waivers, Amendments and Consents
(a) The Special Servicer (solely as to a Specially Serviced
Mortgage Loan for which it acts as Special Servicer) or the Master Servicer
(solely as to a Performing Mortgage Loan for which it acts as Master Servicer)
may (consistent with the Servicing Standard) agree to any modification, waiver
or amendment of any term of, extend the maturity of, defer or forgive interest
(including Default Interest and Post-ARD Additional Interest) on and principal
of, defer or forgive late payment charges, Prepayment Premiums and Yield
Maintenance Charges on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of the
Borrower on or any guarantor of, any Mortgage Loan, subject, however, to
Sections 3.08 and 3.24 (and, in the case of any A Loan or B Loan, subject to the
terms of the related A/B Intercreditor Agreement) and, further to each of the
following limitations, conditions and restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08,
3.20(f) and 3.20(g), the Master Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of the
other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan, that would affect the amount or timing of any related
payment of principal, interest or other amount payable under such
Mortgage Loan or affect the security for such Mortgage Loan, unless such
Master Servicer has obtained the consent of the Special Servicer (it
being understood and agreed that (A) such Master Servicer shall promptly
provide the Special Servicer with notice of any Borrower request for such
modification, waiver or amendment, such Master Servicer's recommendations
and analysis, and with all information reasonably available to such
Master Servicer that the Special Servicer may reasonably request in order
to withhold or grant any such consent, (B) the Special Servicer shall
decide whether to withhold or grant such consent in accordance with the
Servicing Standard and (C) if any such consent has not been expressly
denied within ten Business Days of the Special Servicer's receipt from
such Master Servicer of such Master Servicer's recommendations and
analysis and all information reasonably requested thereby and reasonably
available to such Master Servicer in order to make an informed decision
(or, if the Special Servicer did not request any information, within 15
Business Days from such notice), such consent shall be deemed to have
been granted);
(ii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Mortgage
Loan, consent to the Master Servicer's agreeing to) any modification,
waiver or amendment of any term of, or take (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's taking) any of
the other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or, in
the reasonable, good faith judgment of such Special Servicer, would
materially impair the security for such Mortgage Loan, unless a material
default on such Mortgage Loan has occurred or, in the reasonable judgment
of such Special Servicer, a default in respect of payment on such
Mortgage Loan is reasonably foreseeable, and such modification, waiver,
amendment or other action is reasonably likely to produce a greater
recovery to Certificateholders (as a collective whole) on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be done at the related Net
Mortgage Rate), than would liquidation;
(iii) the Special Servicer shall not extend (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's extending) the
date on which any Balloon Payment is scheduled to be due on any Mortgage
Loan to a date beyond the earliest of (A) the fifth anniversary of such
Mortgage Loan's Stated Maturity Date, (B) three years prior to the Rated
Final Distribution Date for any Class of Rated Certificates, (C) if such
Mortgage Loan is secured by a Mortgage solely or primarily on the related
Borrower's leasehold interest in the related Mortgaged Property, 20 years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, 10 years) prior
to the end of the then current term of the related Ground Lease (plus any
unilateral options to extend), and (D) if such Mortgage Loan is covered
by an environmental insurance policy, two years prior to the expiration
of the term of such policy unless the Special Servicer shall have first
determined in its reasonable judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, and at the
expense of the Borrower, that there are no circumstances or conditions
present at the related Mortgaged Property for which investigation,
testing, monitoring, containment, clean-up or remediation would be
required under any then applicable environmental laws or regulations;
(iv) neither the Master Servicer nor the Special Servicer shall
make or permit any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.20(a) with
respect to, any Mortgage Loan that would result in an Adverse REMIC Event
with respect to either Trust REMIC or an Adverse Grantor Trust Event with
respect to the Grantor Trust;
(v) subject to applicable law, the related Mortgage Loan Documents
and the Servicing Standard, neither the Master Servicer nor the Special
Servicer shall permit any modification, waiver or amendment of any term
of any Performing Mortgage Loan unless all related fees and expenses are
paid by the Borrower;
(vi) the Special Servicer shall not permit (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's permitting)
any Borrower to add or substitute any real estate collateral for its
Mortgage Loan unless the Special Servicer shall have first (A) determined
in its reasonable judgment, based upon a Phase I Environmental Assessment
(and any additional environmental testing that such Special Servicer
deems necessary and prudent) conducted by an Independent Person who
regularly conducts Phase I Environmental Assessments, at the expense of
the related Borrower, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations and (B) received, at the expense of the
related Borrower, written confirmation from each Rating Agency that such
addition or substitution of collateral will not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated
Certificates; and
(vii) the Special Servicer shall not release (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's releasing),
including in connection with a substitution contemplated by clause (vi)
above, any real property collateral securing an outstanding Mortgage
Loan, except as provided in Section 3.09(d), or except where a Mortgage
Loan (or, in the case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released
will not, in the reasonable judgment of such Special Servicer, materially
and adversely affect the net operating income being generated by or the
use of the related Mortgaged Property, or (2) there is a corresponding
principal pay down of such Mortgage Loan in an amount at least equal to
the appraised value of the collateral to be released (or substitute real
estate collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (B) with respect to Performing
Loans, the remaining Mortgaged Property (together with any substitute
collateral) is, in such Special Servicer's reasonable judgment, adequate
security for the remaining Mortgage Loan and (C) with respect to
Performing Loans, such release would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Mortgage Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Borrower within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement
Mortgage Loan, on the related date of substitution); and provided, further,
that, notwithstanding clauses (i) through (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Borrower if, in
its reasonable judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar; and provided, further,
that, notwithstanding clause (vii) above, neither the Master Servicer nor the
Special Servicer shall be required to obtain any confirmation of the Certificate
ratings from the Rating Agencies in order to grant easements that do not
materially affect the use or value of a Mortgaged Property or the Borrower's
ability to make any payments with respect to the related Mortgage Loan.
(b) Neither of the Special Servicer nor of the Master Servicer
shall have any liability to the Trust, the Certificateholders or any other
Person if its analysis and determination that the modification, waiver,
amendment or other action contemplated by Section 3.20(a) is reasonably likely
to produce a greater recovery to Certificateholders on a present value basis
than would liquidation should prove to be wrong or incorrect, so long as the
analysis and determination were made on a reasonable basis by such Special
Servicer or such Master Servicer and consistent with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Master Servicer or the Special Servicer on
behalf of the Trust to enforce any obligations of the related Borrower under
such Mortgage Loan.
(d) The Master Servicer and the Special Servicer may, as a
condition to its granting any request by a Borrower for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within such Master Servicer's or such Special Servicer's, as the case may be,
discretion pursuant to the terms of the related Mortgage Loan Documents and is
permitted by the terms of this Agreement, require that such Borrower pay to it a
reasonable or customary fee (which shall in no event exceed 1.0% of the unpaid
principal balance of the related Mortgage Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fee would not
constitute a "significant modification" of such Mortgage Loan within the meaning
of Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer with respect to any Mortgage Loan
shall be allocable between such parties, as Additional Master Servicing
Compensation and Additional Special Servicing Compensation, respectively, as
provided in Section 3.11.
(e) All modifications, amendments, material waivers and other
material actions entered into or taken in respect of the Mortgage Loans pursuant
to this Section 3.20 (other than waivers of Default Charges) shall be in
writing. The Special Servicer and the Master Servicer shall notify the other
such applicable party, each Rating Agency, the Trustee and the Controlling Class
Representative, in writing, of any modification, waiver, amendment or other
action entered into or taken thereby in respect of any Mortgage Loan pursuant to
this Section 3.20 (other than waivers of Default Charges) and the date thereof,
and shall deliver to the Trustee or the related Custodian for deposit in the
related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ten Business Days) following the
execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by the Special Servicer, or by the Master Servicer
with any required consent of the Special Servicer, pursuant to Section 3.20(a)
above, the Special Servicer or the Master Servicer, as applicable, shall deliver
to the other such party, the Trustee and the Rating Agencies an Officer's
Certificate certifying that all of the requirements of Section 3.20(a) have been
met and, in the case of the Special Servicer, setting forth in reasonable detail
the basis of the determination made by it pursuant to Section 3.20(a)(ii);
provided that, if such modification, waiver or amendment involves an extension
of the maturity of any Mortgage Loan, such Officer's Certificate shall be so
delivered before the modification, waiver or amendment is agreed to. The Master
Servicer shall notify the B Loan Holder of any modification of the monthly
payments of the related Loan, and such monthly payments shall be allocated in
accordance with the related A/B Intercreditor Agreements.
(f) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, with the consent of the
Controlling Class Representative, to waive (such waiver to be in writing
addressed to the related Borrower, with a copy to the Trustee) all or any
portion of the accrued Post-ARD Additional Interest in respect of such ARD
Mortgage Loan if (i) such ARD Mortgage Loan is a Performing Mortgage Loan, (ii)
the related Borrower has requested the right to prepay such ARD Mortgage Loan in
full together with all payments required by the related Mortgage Loan Documents
in connection with such prepayment except for such accrued Post-ARD Additional
Interest, and (iii) the Master Servicer has determined, in its reasonable
judgment, that waiving such Post-ARD Additional Interest is in accordance with
the Servicing Standard. The Master Servicer shall prepare all documents
necessary and appropriate to effect any such waiver and shall coordinate with
the related Borrower for the execution and delivery of such documents.
(g) Notwithstanding anything in this Section 3.20 or in Section
3.08 or Section 3.24 to the contrary, the Master Servicer shall not be required
to seek the consent of or provide prior notice to, the Special Servicer or any
Certificateholder or obtain any confirmation of the Certificate ratings from the
Rating Agencies in order to approve the following modifications, waivers or
amendments of the Mortgage Loans for which it acts as Master Servicer: (i)
waivers of minor covenant defaults (other than financial covenants), including
late financial statements; (ii) waiver of Default Charges, in accordance with
Section 3.02; (iii) releases of parcels of a Mortgaged Property (provided that
any such releases are releases as to which the related Mortgage Loan Documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions and such releases shall be made as required
by the Mortgage Loan Documents or are related to any pending or threatened
condemnation action); (iv) grants of easements or rights of way that do not
materially affect the use or value of a Mortgaged Property or the Borrower's
ability to make any payments with respect to the related Mortgage Loan; (v)
routine leasing activities that affect less than the greater of 20% of the net
rentable area of the Mortgaged Property or 10,000 square feet of the Mortgaged
Property and (vi) approval of annual budgets to operate the Mortgaged Property;
provided that any such modification, waiver or amendment, or agreeing to any
such modification, waiver or amendment, (w) would not in any way affect a
payment term of the Certificates, (x) would not constitute a "significant
modification" of such Mortgage Loan pursuant to Treasury Regulations Section
1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with
respect to either Trust REMIC or an Adverse Grantor Trust Event with respect to
the Grantor Trust, (y) would be consistent with the Servicing Standard, and (z)
shall not violate the terms, provisions or limitations of this Agreement or any
other document contemplated hereby.
(h) The Master Servicer shall not terminate or replace, or consent
to the termination or replacement of, any property manager with respect to any
Mortgaged Property, and the Master Servicer shall not terminate or change or
consent to the termination or change of the franchise for any Mortgage Property
operated as a hospitality property, in any event without the prior written
consent of the Special Servicer (it being understood and agreed that (A) such
Master Servicer shall promptly provide such Special Servicer with its analysis,
recommendations and all information that such Special Servicer may reasonably
request and which information is in the possession of such Master Servicer, in
order to withhold or grant any such consent, (B) such Special Servicer shall
decide whether to withhold or grant such consent in accordance with the
Servicing Standard and (C) if any such consent has not been expressly denied
within ten Business Days of such Special Servicer's receipt from such Master
Servicer of such analysis, recommendation and all information reasonably
requested thereby in order to make an informed decision (or, if such Special
Servicer did not request any information, within ten Business Days from such
notice), such consent shall be deemed to have been granted.
(i) In connection with granting an extension of the maturity date
of any Mortgage Loan in accordance with Section 3.20(a), the Special Servicer,
in the case of a Specially Serviced Mortgage Loan, and the Master Servicer, in
the case of a Performing Mortgage Loan, shall each cause the related Borrower to
agree, if it has not already done so pursuant to the existing Mortgage Loan
Documents, to thereafter deliver to the Special Servicer, the Trustee and the
Controlling Class Representative audited operating statements on a quarterly
basis with respect to the related Mortgaged Property, provided that the Special
Servicer or the Master Servicer, as the case may be, may, in its sole
discretion, waive the requirement that such statements be audited.
(j) Notwithstanding anything in this Agreement, including this
Section 3.20, to the contrary, for so long as the Master Servicer and the
Special Servicer are the same Person, the Master Servicer shall not be obligated
to obtain the consent or approval of the Special Servicer as otherwise required
in this Agreement but shall instead be required to request the consent or
approval of the Controlling Class Representative (in respect of any matter as to
which such consent is otherwise required hereunder) to the extent, and on the
same terms, subject to the same limitations, restrictions and exclusions and
within the same time periods as, the Special Servicer is required to request
such consent or approval of the Controlling Class Representative pursuant to
Section 3.24 or any other section or provision of this Agreement.
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 Mortgage Loan, the Master Servicer shall immediately give
notice thereof to the Controlling Class Representative, and if the Master
Servicer is not also the Special Servicer, such Master Servicer shall
immediately give notice thereof, and shall deliver the related Servicing File,
to the Special Servicer and shall use its best efforts to provide such 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 Mortgage Loan and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. To the extent such is in the possession
of the Master Servicer or any Sub-Servicer thereof, the information, documents
and records to be delivered by such Master Servicer to the Special Servicer
pursuant to the prior sentence shall include, but not be limited to, financial
statements, appraisals, environmental/engineering reports, leases, rent rolls,
title insurance policies, UCC's and tenant estoppels. The Master Servicer shall
use its best efforts to comply with the preceding two sentences within five
Business Days of the occurrence of each related Servicing Transfer Event and the
Master Servicer shall deliver a copy of the related Servicing File in its
possession to the Special Servicer within such five Business Day period. Upon
determining that a Servicing Transfer Event has occurred, the Master Servicer
shall review the Servicing File and request from the Trustee any material
documents that it is aware are missing from such Servicing File. Any B Loan
shall constitute a Specially Serviced Mortgage Loan for which the Special
Servicer is responsible for so long as the related A Loan is a Specially
Serviced Mortgage Loan.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Master Servicer is not also the
Special Servicer, such Special Servicer shall immediately give notice thereof,
and shall return the related Servicing File within five Business Days, to the
Master Servicer; and, upon giving such notice and returning such Servicing File
to the Master Servicer, such Special Servicer's obligation to service such
Mortgage Loan, and such Special Servicer's right to receive the Special
Servicing Fee with respect to such Mortgage Loan, shall terminate, and the
obligations of the Master Servicer to service and administer such Mortgage Loan
shall resume.
Notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
such Master Servicer and such Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan, for inclusion in the
related Mortgage File (with a copy of each such original to the Master
Servicer), and copies of any additional related Mortgage Loan information,
including correspondence with the related Borrower generated while such Mortgage
Loan is a Specially Serviced Mortgage Loan.
(c) The Master Servicer and the Special Servicer shall each
furnish to the other, upon reasonable request, such reports, documents,
certifications and information in its possession, and access to such books and
records maintained thereby, as may relate to the Mortgage Loans and any related
REO Properties and as shall be reasonably required by the requesting party in
order to perform its duties hereunder.
(d) In connection with the performance of its obligations
hereunder, the Master Servicer and the Special Servicer shall be entitled to
rely upon written information provided to it by the other.
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, including
any amendments thereto and modifications thereof: (i) insofar as it affects the
Trust, is consistent with this Agreement, including Section 7.01(a), in all
material respects and requires the Sub-Servicer to comply in all material
respects with all of the applicable conditions of this Agreement; (ii) provides
that if such Master Servicer or such Special Servicer, as the case may be, shall
for any reason no longer act in such capacity hereunder (including by reason of
an Event of Default), the Trustee or its designee or any other successor to such
Master Servicer or such Special Servicer, as the case may be, may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of such Master Servicer or such Special Servicer, as
the case may be, under such agreement or, alternatively, may terminate such
Sub-Servicing Agreement without cause and without payment of any penalty or
termination fee (provided, however, that a Designated Sub-Servicer Agreement may
not be terminated except for cause, which will include the occurrence of any
Adverse Rating Event resulting from the subject Sub-Servicer's acting in such
capacity); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third-party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of such Master Servicer or such Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii), and except with
respect to the obligations of any successor Master Servicer under the Designated
Sub-Servicer Agreements) none of the Trustee, any successor Master Servicer or
Special Servicer, as the case may be, or any Certificateholder shall have any
duties under such agreement or any liabilities arising therefrom except as
explicitly set forth herein; (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) does not permit
the subject Sub-Servicer to foreclose on a Mortgaged Property or to enter into
or consent to any modification, waiver or amendment or otherwise take any action
on behalf of such Master Servicer or Special Servicer, as the case may be,
contemplated by Section 3.20 hereof without the consent of such Master Servicer
or Special Servicer, as the case may be; (vi) does not permit the Sub-Servicer
any rights of indemnification out of the Trust Fund except through such Master
Servicer or the Special Servicer, as the case may be, have pursuant to Section
6.03; (vii) provides that the Sub-Servicer shall act in accordance with the
Servicing Standard; (viii) provides that in the event of an act or failure to
act by the Sub-Servicer that causes the Master Servicer or Special Servicer, as
applicable, to be in default of its obligations under this Agreement, the
Sub-Servicer shall be in default of its obligations under such Sub-Servicing
Agreement; and (ix) provides that the failure of the related Sub-Servicer to
comply with any of the requirements under Article XII of this Agreement that are
applicable to such Sub-Servicer under such Sub-Servicing Agreement (or with
requirements set forth in such Sub-Servicing Agreement that are substantially
similar in all material respects to the requirements under Article XII of this
Agreement), including the failure to deliver any reports or certificates at the
time such report or certification is required under Article XII shall constitute
an event of default by such Sub-Servicer upon the occurrence of which either the
Master Servicer or the Depositor may immediately terminate the related
Sub-Servicer under the related Sub-Servicing agreement and that such termination
shall be deemed for cause; provided that the appointment by such Master Servicer
or Special Servicer of a third-party contractor for the purpose of performing
discrete, ministerial functions shall not be subject to this Section 3.22
(except that such Master Servicer or Special Servicer, as the case may be, shall
remain responsible for the actions of such third-party contractors and shall pay
all fees and expenses of such third-party contractors, unless otherwise
expressly provided herein). No Sub-Servicing Agreement entered into by the
Master Servicer shall purport to delegate or effectively delegate to the related
Sub-Servicer any of the rights or obligations of the Special Servicer with
respect to any Specially Serviced Mortgage Loan or otherwise. Each Sub-Servicing
Agreement entered into by the Special Servicer shall relate only to Specially
Serviced Mortgage Loans for which such Special Servicer acts as Special Servicer
and any related REO Properties and shall not purport to delegate or effectively
delegate to the related Sub-Servicer any of the rights or obligations of the
Master Servicer with respect to any Mortgage Loan, including any Specially
Serviced Mortgage Loan. The Master Servicer and the Special Servicer shall each
notify such other parties, the Trustee and the Depositor in writing promptly of
the appointment by it of any Sub-Servicer (other than a Designated
Sub-Servicer). The Master Servicer and the Special Servicer shall deliver to the
Trustee 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 Advances shall be deemed to have been
advanced by such Master Servicer or such Special Servicer, as the case may be,
out of its own funds and, accordingly, such Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were such Master Servicer or such Special Servicer, as the case may
be. Such Advances shall accrue interest in accordance with Sections 3.11(g)
and/or 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
shall each be deemed to have received any payment when a Sub-Servicer retained
by it receives such payment.
With respect to any Sub-Servicing Agreement entered into by the
Master Servicer after the Closing Date and prior to the date upon which the
Trust's Exchange Act reporting obligations are terminated by the filing of a
Form 15 Suspension Notification as contemplated by Section 12.10, such
Sub-Servicer shall not be a Prohibited Party. Any such Sub-Servicing Agreement
may permit the Sub-Servicer to delegate its duties to agents or subcontractors
so long as the related agreements or arrangements with such agents or
subcontractors are (or may be required to be), to the extent of the services to
be performed, consistent with the provisions of this Section 3.22 (including,
for the avoidance of doubt, that no such agent or subcontractor is a Prohibited
Party prior to the date upon which the Trust's Exchange Act reporting
obligations are terminated by the filing of a Form 15 Suspension Notification as
contemplated by Section 12.10).
(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 to ensure the
enforceability of the subject Mortgage Loans and to avoid any loss or liability
to the Trust.
(c) The Master Servicer and the Special Servicer, for the benefit
of the Trustee and the Certificateholders, shall (at no expense to the other
such party or to the Trustee, the Certificateholders or the Trust) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including 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 such
Master Servicer or such Special Servicer, as applicable, in its reasonable
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, including any provisions thereof
limiting the ability of such Master Servicer or such Special Servicer, as
applicable, to terminate a Sub-Servicer, such Master Servicer and such Special
Servicer shall each have the right to remove a Sub-Servicer retained by it at
any time it considers such removal to be in the best interests of
Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve
as such under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of such Master Servicer or such Special Servicer under any
Sub-Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that no
Designated Sub-Servicer Agreement may be so terminated except for cause, which
will include the occurrence of any Adverse Rating Event resulting from the
subject Sub-Servicer's acting in such capacity. In any event, if a Sub-Servicing
Agreement is to be assumed by the Trustee or other successor Master Servicer or
Special Servicer, then such Master Servicer or such Special Servicer, as
applicable, at its expense shall deliver to the assuming party all documents and
records relating to such Sub-Servicing Agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held on
behalf of it thereunder, and otherwise use reasonable efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreement to the assuming
party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee and the Certificateholders 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 Mortgage Loans or REO Properties for
which it is responsible. No appointment of a Sub-Servicer shall result in any
additional expense to the Trustee, the Certificateholders or the Trust other
than those contemplated herein.
(f) The Special Servicer shall not enter into any Sub-Servicing
Agreement unless: (i) the Rating Agencies have confirmed in writing that
entering into such agreement will not result in an Adverse Rating Event; and
(ii) such agreement relates to one or more Mortgage Loans (including any such
Mortgage Loan(s) previously sub-serviced in accordance with this Section 3.22)
that together represent less than 25% of the aggregate outstanding principal
balance of all Specially Serviced Mortgage Loans; and (iii) the Controlling
Class Representative has consented.
Section 3.23 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 Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (each, a "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) 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
Certificates representing more than 50% of the Class Principal Balance of 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 established by the
Trustee for selecting a Controlling Class Representative, which process may
include the designation of the Controlling Class Representative by the related
Majority Controlling Class Certificateholder by a writing delivered to the
Trustee. No appointment of any Person as a Controlling Class Representative
shall be effective until the Trustee has received confirmation that the
appointment of such Controlling Class Representative is acceptable to the
Majority Controlling Class Certificateholder and such Person provides the
Trustee with (i) written confirmation of its acceptance of such appointment,
(ii) written confirmation of its agreement to keep confidential, for so long as
reports are required to be filed with respect to the Trust under Section 15(d)
of the Exchange Act, all information received by it with respect to the Trust
and its assets that has not been filed with the Commission, (iii) an address and
telecopy number for the delivery of notices and other correspondence and (iv) 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 telecopy
numbers). Anthracite shall be the initial Controlling Class Representative
without any further notification or confirmation referred to in this paragraph.
(b) Within ten Business Days (or as soon thereafter as practicable
if the Controlling Class consists of Book-Entry Certificates) of any change in
the identity of the Controlling Class Representative of which a Responsible
Officer of the Trustee has actual knowledge and otherwise promptly upon request
from the Master Servicer or the Special Servicer, the Trustee shall deliver to
each of the Master Servicer and the Special Servicer 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
Holders (or, in the case of Book-Entry Certificates, subject to Section 5.06, by
the Depository or the Certificate Owners) of such Certificates, and the Master
Servicer and the Special Servicer shall be entitled to 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 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.
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee, the Special Servicer, the Master
Servicer 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 Class Principal Balance of the Controlling Class shall be
entitled to remove any existing Controlling Class Representative by giving
written notice to the Trustee, the Special Servicer, the Master Servicer and
such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
party to this Agreement and each Holder (or, in the case of 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, in proportion to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower 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,
the Master Servicer, the Trustee or the Trust are also named parties to the same
action and, in the sole judgment of the Master Servicer or the Special Servicer,
(i) such 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, the Master Servicer, the
Trustee or the Trust to be an adverse party in such action as regards such
Controlling Class Representative) the Master Servicer or the Special Servicer
or, if such action does not relate to a specific Mortgage Loan, the Special
Servicer, on behalf of the Trust 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 any Controlling Class Representative.
Section 3.24 Certain Rights and Powers of the Controlling Class
Representative
(a) The Controlling Class Representative will be entitled to
advise the Special Servicer with respect to the Special Servicer's taking, or
consenting to the Master Servicer's taking, any of the actions identified in
clauses (i) through (ix) of the following sentence. In addition, notwithstanding
anything in any other Section of this Agreement to the contrary, but in all
cases subject to Section 3.20(g) and Section 3.24(b), the Special Servicer will
not be permitted to take, or consent to the Master Servicer's taking, any of the
actions identified in clauses (i) through (ix) of this sentence, unless and
until such Special Servicer has notified the Controlling Class Representative in
writing of such Special Servicer's intent to take or permit the particular
action and the Controlling Class Representative has consented (or has failed to
object) thereto in writing within five Business Days of having been notified
thereof in writing and having been provided with all reasonably requested
information with respect thereto:
(i) any proposed foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of the
property or properties securing any Specially Serviced Mortgage Loans as
come into and continue in default;
(ii) any modification, amendment or waiver of a monetary term
(including any change in the timing of payments but excluding the waiver
of Default Charges) or any material non-monetary term (excluding any
waiver of a "due-on-sale" or "due-on-encumbrance" clause, which clauses
are addressed in clause (ix) below) of a Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to any
Specially Serviced Mortgage Loan;
(iv) any proposed sale of an REO Property for less than the Stated
Principal Balance of, and accrued interest (other than Default Interest
and Post-ARD Additional Interest) on, the related Mortgage Loan, except
in connection with a termination of the Trust Fund pursuant to Section
9.01;
(v) any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address Hazardous
Materials located at an REO Property;
(vi) any release of collateral for any Mortgage Loan (other than
in accordance with the specific terms which do not provide for lender
discretion of, or upon satisfaction of, such Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for
any Specially Serviced Mortgage Loan (other than in accordance with the
specific terms of such Mortgage Loan);
(viii) any release of Earn-Out Reserve Funds or related Letter of
Credit with respect to a Mortgaged Property securing a Mortgage Loan;
(ix) any waiver of a due-on-sale or due-on-encumbrance clause in
any Mortgage Loan; and
(x) any consent to a change in franchise with respect to a
hospitality loan or a change in the property manager of a Mortgage Loan
with a principal balance greater than $5,000,000,
provided that, if the Special Servicer or the Master Servicer, as applicable,
determines that immediate action is necessary to protect the interests of the
Certificateholders (as a whole), the Special Servicer may take any such action
without waiting for the response of the Controlling Class Representative.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, such actions as such Controlling Class Representative may deem advisable
or as to which provision is otherwise made herein. Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in such Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action.
The Master Servicer or the Special Servicer, as applicable, shall
notify the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with the related Mortgage Loan Documents.
(b) Notwithstanding anything herein to the contrary, (i) the
Special Servicer shall not have any right or obligation to consult with or to
seek and/or obtain consent or approval from the Controlling Class Representative
prior to acting, and the provisions of this Agreement requiring such shall be of
no effect, during the period prior to the initial selection of a Controlling
Class Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected, and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a) or any
other provision of this Agreement, may (and the Master Servicer and Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that such Master Servicer or Special Servicer, as the case may be, has
determined, in its reasonable judgment, would) (A) require or cause the Master
Servicer, such Special Servicer or the Trustee to violate applicable law, the
terms of any Mortgage Loan or any other Section of this Agreement, including
such Master Servicer's or Special Servicer's obligation to act in accordance
with the Servicing Standard, (B) result in an Adverse REMIC Event with respect
to either Trust REMIC or an Adverse Grantor Trust Event with respect to the
Grantor Trust, (C) expose the Trust, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, or any of their respective Affiliates, members,
managers, officers, directors, employees or agents, to any material claim, suit
or liability, or (D) expand the scope of the Master Servicer's or Special
Servicer's responsibilities under this Agreement.
(c) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Controlling Class Representative
may have special relationships and interests that conflict with those of Holders
of one or more Classes of Certificates; (ii) the Controlling Class
Representative may act solely in the interests of the Holders of the Controlling
Class; (iii) the Controlling Class Representative does not have any duties to
the Holders of any Class of Certificates other than the Controlling Class (and
with respect to such Controlling Class Holders shall have no liability for any
action taken or omitted which does not constitute negligence, bad faith or
willful misfeasance); (iv) the Controlling Class Representative may take actions
that favor interests of the Holders of the Controlling Class over the interests
of the Holders of one or more other Classes of Certificates; and (v) the
Controlling Class Representative shall have no liability whatsoever for having
so acted or for any action taken or omitted, 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.
Section 3.25 Replacement of Special Servicer
(a) Subject to Section 3.25(b), the Controlling Class
Representative may, upon not less than ten days' prior written notice to the
respective parties hereto, remove any existing Special Servicer hereunder (with
or without cause) and appoint a successor Special Servicer; provided that, if
any such removal is made without cause, then the costs of transferring the
special servicing responsibilities to a successor Special Servicer will, upon
such removal or other termination, be paid by the Certificateholders of the
Controlling Class.
(b) No removal of the Special Servicer and appointment of a
successor thereto pursuant to Section 3.25(a) shall be effective until: (i) the
Trustee shall have received (A) written confirmation from each of the Rating
Agencies that such removal and appointment will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates, (B) an Acknowledgment of
Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed
by the Person designated to be the successor Special Servicer, and (C) an
Opinion of Counsel (which shall not be an expense of the Trustee or the Trust)
substantially to the effect that (1) the removal of such existing Special
Servicer and the appointment of the Person designated to serve as successor
Special Servicer is in compliance with this Section 3.25, (2) such designated
Person is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (3) the Acknowledgment of Proposed
Special Servicer, the form of which is attached hereto as Exhibit I-2, has been
duly authorized, executed and delivered by such designated Person and (4) upon
the execution and delivery of the Acknowledgment of Proposed Special Servicer,
such designated Person shall be bound by the terms of this Agreement and,
subject to customary bankruptcy and insolvency exceptions and customary equity
exceptions, this Agreement shall be enforceable against such designated Person
in accordance with its terms; and (ii) if such existing Special Servicer has
been removed by the Controlling Class Representative without cause, the
Certificateholders of the Controlling Class have delivered to the Trustee and
the terminated Special Servicer such Certificateholders' joint and several
undertaking to pay any expenses incurred by the Trustee and such terminated
Special Servicer in connection with the transfer of special servicing
responsibilities to a successor Special Servicer.
(c) Any Special Servicer terminated pursuant to Section 3.25(a)
shall be deemed to have been so terminated simultaneously with the designated
successor's becoming the Special Servicer hereunder; provided that (i) the
terminated Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Collection Account of all of its accrued and
unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a),
and reimbursement from the successor Special Servicer of all outstanding
Servicing Advances made by the terminated Special Servicer and all unpaid
Advance Interest accrued on such outstanding Servicing Advances (in which case
the successor Special Servicer shall be deemed to have made such Servicing
Advances at the same time that the terminated Special Servicer had actually made
them), (ii) the terminated Special Servicer shall thereafter be entitled to
Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and
(iii) such terminated Special Servicer shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination; and provided,
further, that the terminated Special Servicer shall continue to be obligated to
pay (and entitled to receive) all other amounts accrued to (or owing by) it
under this Agreement on or prior to the effective date of such termination. Such
terminated Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days of its termination becoming effective pursuant to
Section 3.25, to the replacement Special Servicer for administration by it of
all cash amounts that at the time are or should have been credited by the
terminated Special Servicer to the REO Account or to any Servicing Account or
Reserve Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of the terminated Special Servicer with
respect to any Mortgage Loan or REO Property.
Section 3.26 Application of Default Charges
(a) Any and all Default Charges that are actually received by or
on behalf of the Trust with respect to any Mortgage Loan or REO Mortgage Loan,
shall be applied for the following purposes and in the following order, in each
case to the extent of the remaining portion of such Default Charges:
First, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party
on outstanding Advances made thereby with respect to such Mortgage Loan
or REO Mortgage Loan, as the case may be;
Second, to reimburse the Trust for any Advance Interest paid to
the Trustee, the Master Servicer or the Special Servicer since the
Closing Date with respect to such Mortgage Loan or REO Mortgage Loan, as
the case may be, which interest was paid from a source other than Default
Charges on such Mortgage Loan or REO Mortgage Loan, as the case may be;
Third, to pay any other outstanding expense incurred with respect
to such Mortgage Loan or REO Mortgage Loan, as the case may be, that, if
not paid from Default Charges collected on such Mortgage Loan or REO
Mortgage Loan, as the case may be, will likely become an Additional Trust
Fund Expense;
Fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred since the Closing Date with respect to such Mortgage
Loan or REO Mortgage Loan, as the case may be, and previously paid from a
source other than Default Charges on such Mortgage Loan or REO Mortgage
Loan, as the case may be; and
Fifth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Mortgage
Loan, and otherwise to pay any remaining portion of such Default Charges
as Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause Second or clause Fourth of Section 3.26(a) are intended to be
available for distribution on the Certificates pursuant to Section 4.01(a) and
Section 4.01(b), subject to application pursuant to Section 3.05(a) or 3.05(b)
for any items payable out of general collections on the Mortgage Pool. Default
Charges applied to reimburse the Trust pursuant to either clause Second or
clause Fourth of Section 3.26(a) shall be deemed to offset payments of Advance
Interest or other Additional Trust Fund Expenses (depending on which clause is
applicable) in the chronological order in which they were made or incurred with
respect to the subject Mortgage Loan or REO Mortgage Loan (whereupon such
Advance Interest or other Additional Trust Fund Expenses (depending on which
clause is applicable) shall thereafter be deemed to have been paid out of
Default Charges).
Section 3.27 Authenticating Agent
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Trustee and must be a corporation organized and doing business under the laws of
the United States of America or any state, having a principal office and place
of business in a state and city acceptable to the Trustee, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or state
authorities. The Trustee shall serve as the initial Authenticating Agent and the
Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Depositor and
the Master Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent other than the initial Authenticating Agent by giving
written notice of termination to the Authenticating Agent, the Depositor and the
Master Servicer. Upon receiving a notice of resignation or upon such a
termination, or in case at any time the Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 3.27, the Trustee may
appoint a successor Authenticating Agent, which shall be acceptable to the
Depositor, and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 3.27.
The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
Notwithstanding the foregoing in this Section 3.27, the
appointment of the Authenticating Agent shall not relieve the Trustee from any
of its obligations hereunder, and the Trustee shall remain responsible for all
acts and omissions of the Authenticating Agent.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions
(a) On each Distribution Date, the Trustee shall transfer or be
deemed to transfer such amounts from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account in the amounts and priorities set forth in
Section 4.01(c) with respect to each Class of Uncertificated Lower-Tier
Interests, and immediately thereafter, on each Distribution Date prior to the
date on which the Class Principal Balance of the last outstanding Class of
Subordinate Certificates has been reduced to zero, to the extent of the
Available Distribution Amount for such Distribution Date, shall make
distributions thereof from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority
from the Available Distribution Amount:
(i) concurrently, (i) from that portion of the Available
Distribution Amount attributable to Loan Group No. 1, to the Class A-1,
Class A-2, Class A-AB and Class A-3 Certificates, pro rata, up to the
Optimal Interest Distribution Amounts for each such Class for such
Distribution Date, (ii) from that portion of the Available Distribution
Amount attributable to Loan Group No. 2, to the Class A-1-A Certificates,
up to the Optimal Interest Distribution Amount for such Class for such
Distribution Date and (iii) from the entire Available Distribution
Amount, to the Class A-X Certificates up to the Optimal Interest
Distribution Amounts for such Class for such Distribution Date; provided,
however, that if the Available Distribution Amount for any Distribution
Date (or the portion thereof attributable to any Group) is insufficient
to pay in full the Optimal Interest Distribution Amount, as provided
above, on such Distribution Date, then the entire Available Distribution
Amount shall be applied to make distributions of interest to the Class
X-0, Xxxxx X-0, Class A-AB, Class A-3, Class A-1-A and Class A-X and
Certificates of, up to, and pro rata as among such Classes in accordance
with, the respective Optimal Interest Distribution Amounts in respect of
such Classes of Certificates for such Distribution Date;
(ii) to the Class A-1, Class A-1-A, Class A-2, Class A-AB and
Class A-3 Certificates, in reduction of the Class Principal Balances
thereof, an amount up to the Principal Distribution Amount for such
Distribution Date, in the following order of priority:
First, to the Class A-1-A Certificates, equal to the portion of
the Principal Distribution Amount for such Distribution Date that is
attributable to Loan Group No. 2, until the Class Principal Balance
thereof has been reduced to zero;
Second, to the Class A-AB Certificates, until the Class Principal
Balance thereof has been reduced to the Class A-AB Targeted Principal
Balance set forth for such Distribution Date on Exhibit P hereto (net of
any portion thereof distributed on such Distribution Date to the Holders
of the Class A-1-A Certificates pursuant to subclause first of this
clause (ii);
Third, to the Class A-1 Certificates, until the Class Principal
Balance thereof has been reduced to zero (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A
and Class A-AB Certificates pursuant to a prior subclause of this clause
(ii);
Fourth, to the Class A-2 Certificates, until the Class Principal
Balance thereof has been reduced to zero (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A,
Class A-AB and Class A-1 Certificates pursuant to a prior subclause of
this clause (ii);
Fifth, to the Class A-AB Certificates, until the Certificate
Balance thereof has been reduced to zero (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A,
Class A-AB, Class A-1 and Class A-2 Certificates pursuant to a prior
subclause of this clause (ii);
Sixth, to the Class A-3 Certificates, until the Class Principal
Balance thereof has been reduced to zero (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A,
Class A-AB, Class A-1, Class A-2 and Class A-AB Certificates pursuant to
a prior subclause of this clause (ii); and
Seventh, to the Class A-1-A Certificates, until the Class
Certificate Balance thereof has been reduced to zero (net of any
distribution of principal made with respect to the Class A-1-A
Certificates on such Distribution Date pursuant to subclause first of
this clause (ii), up to an amount equal to the entire aggregate Principal
Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such Distribution Date to the Holders of the Class
A-1-A, Class A-1, Class A-2, Class A-AB and Class A-3 Certificates
pursuant to a prior subclause of this clause (ii);
provided, however, that, notwithstanding the immediately preceding
subclauses First through Seventh, on each Distribution Date coinciding
with or following the Senior Principal Distribution Cross-Over Date, and
in any event on the final Distribution Date in connection with the
termination of the Trust Fund, the Trustee shall make distributions of
principal to the Holders of the Class A-1, Class A-1-A, Class A-2, Class
A-AB and Class A-3 Certificates, on a pro rata basis, in accordance with
the respective Class Principal Balances of those Classes outstanding
immediately prior to such Distribution Date, until the Class Principal
Balance of each such Class has been reduced to zero, up to, in the
aggregate, the entire Principal Distribution Amount for such Distribution
Date.
(iii) to the Class A-1, Class A-1-A, Class A-2, Class A-AB and
Class A-3 Certificates, pro rata (based on the aggregate unreimbursed
Realized Loss previously allocated to each such Class), until all amounts
of such Realized Loss previously allocated to such Classes, but not
previously reimbursed, have been reimbursed in full;
(iv) to the Class B Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(v) to the Class B Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(vi) to the Class B Certificates, until all amounts of Realized
Loss previously allocated to the Class B Certificates, but not previously
reimbursed, have been reimbursed in full;
(vii) to the Class C Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(viii) to the Class C Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(ix) to the Class C Certificates, until all amounts of Realized
Loss previously allocated to the Class C Certificates, but not previously
reimbursed, have been reimbursed in full;
(x) to the Class D Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xi) to the Class D Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xii) to the Class D Certificates, until all amounts of Realized
Loss previously allocated to the Class D Certificates, but not previously
reimbursed, have been reimbursed in full;
(xiii) the Class E Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xiv) to the Class E Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xv) to the Class E Certificates, until all amounts of Realized
Loss previously allocated to the Class E Certificates, but not previously
reimbursed, have been reimbursed in full;
(xvi) to the Class F Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xvii) to the Class F Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xviii) to the Class F Certificates, until all amounts of Realized
Loss previously allocated to the Class F Certificates, but not previously
reimbursed, have been reimbursed in full;
(xix) to the Class G Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xx) to the Class G Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxi) to the Class G Certificates, until all amounts of Realized
Loss previously allocated to the Class G Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxii) to the Class H Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxiii) to the Class H Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxiv) to the Class H Certificates, until all amounts of Realized
Loss previously allocated to the Class H Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxv) to the Class J Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxvi) to the Class J Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxvii) to the Class J Certificates, until all amounts of Realized
Loss previously allocated to the Class J Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxviii) to the Class K Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxix) to the Class K Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxx) to the Class K Certificates, until all amounts of Realized
Loss previously allocated to the Class K Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxxi) to the Class L Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxii) to the Class L Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxiii) to the Class L Certificates, until all amounts of
Realized Loss previously allocated to the Class L Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxxiv) to the Class M Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxv) to the Class M Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxvi) to the Class M Certificates, until all amounts of Realized
Loss previously allocated to the Class M Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxxvii) to the Class N Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxviii) to the Class N Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxix) to the Class N Certificates, until all amounts of Realized
Loss previously allocated to the Class N Certificates, but not previously
reimbursed, have been reimbursed in full;
(xl) to the Class O Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xli) to the Class O Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlii) to the Class O Certificates, until all amounts of Realized
Loss previously allocated to the Class O Certificates, but not previously
reimbursed, have been reimbursed in full;
(xliii) to the Class P Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xliv) to the Class P Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlv) to the Class P Certificates, until all amounts of Realized
Loss previously allocated to the Class P Certificates, but not previously
reimbursed, have been reimbursed in full;
(xlvi) to the Class Q Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xlvii) to the Class Q Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlviii) to the Class Q Certificates, until all amounts of
Realized Loss previously allocated to the Class Q Certificates, but not
previously reimbursed, have been reimbursed in full; and
(xlix) to the Class R Certificates, the amount, if any, remaining
in the Upper-Tier Distribution Account after all other distributions
pursuant to this Section 4.01(a) and Section 4.01(e).
(b) [Reserved].
(c) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions from the Lower-Tier
Distribution Account in respect of principal or reimbursement of Realized Loss
in an amount equal to the amount of principal or reimbursement of Realized Loss
distributable to such Uncertificated Lower-Tier Interest's respective Class of
Related Certificates as provided in Sections 4.01(a) and (b).
During each Interest Accrual Period, each Uncertificated
Lower-Tier Interest shall accrue interest in an amount equal to the product of
the Lower-Tier Principal Amount of each such Uncertificated Lower-Tier Interest
and the Weighted Average Net Mortgage Rate. On each Distribution Date, each
Uncertificated Lower-Tier Interest shall be deemed to receive distributions in
respect of interest in an amount equal to the sum of (i) the amount of interest
that will actually be distributed in respect of such Uncertificated Lower-Tier
Interest's Related Certificates and (ii) the amount of interest that will
actually be distributed in respect of such Uncertificated Lower-Tier Interest's
corresponding Related Component. In all events, the amount accrued in respect of
each Uncertificated Lower-Tier Interest less the amount actually distributed in
respect of such Uncertificated Lower-Tier Interest shall equal the sum of (i)
the Interest Shortfall Amount allocated to such Uncertificated Lower-Tier
Interest's Related Certificate based on their respective Interest Shortfall
Amounts and (ii) the Interest Shortfall Amount allocated to the related Class
A-X Component and attributable to such Uncertificated Lower-Tier Interest. Any
amounts remaining in the Lower-Tier Distribution Account after payment to the
Uncertificated Lower-Tier Interests pursuant to this Section 4.01(c) and Section
4.01(d) and payment of expenses of the Trust Fund shall be distributed to the
Class LR Certificates.
Such amounts distributed to the Uncertificated Lower-Tier
Interests in respect of principal, interest and reduction of Realized Loss with
respect to any Distribution Date are referred to herein collectively as the
"Lower-Tier Distribution Amount" and shall be deemed to be deposited by the
Trustee in the Upper-Tier Distribution Account.
As of any date, payments of principal in respect of the Mortgage
Loans and the Realized Loss shall be allocated to the Uncertificated Lower-Tier
Interests such that the sum of the principal balance after application of any
Realized Loss of each Uncertificated Lower-Tier Interest and the cumulative
amount of Realized Loss allocated to such Class of Uncertificated Lower-Tier
Interests equals the sum of the Class Principal Balance of the Related
Certificates after the application of any Realized Loss with respect thereto and
the cumulative amount of Realized Loss allocated to such Class of Related
Certificates. The initial principal balance of each Uncertificated Lower-Tier
Interest equals the respective Original Lower-Tier Principal Amount. The
interest rate with respect to each Uncertificated Lower-Tier Interest will be
the Weighted Average Net Mortgage Rate.
Interest Shortfall Amounts allocated to the Class A-X Certificates
shall be attributed to the Uncertificated Lower-Tier Interests to the extent of
the Related Components, pro rata, based on interest accrued on such Components.
Any amounts so allocated shall have the same seniority as interest payments due
on the Class A-X Certificates. Prepayment Interest Shortfalls shall be allocated
to each Class of Uncertificated Lower-Tier Interests pro rata on the basis of
their respective interest entitlements.
(d) On each Master Servicer Remittance Date, the Master Servicer
shall remit to the Trustee all Prepayment Premiums and Yield Maintenance Charges
for deposit in the Lower-Tier Distribution Account for payment to the
Uncertificated Lower-Tier Interests. On each Distribution Date, the Trustee
shall be deemed to withdraw from the Lower-Tier Distribution Account an
aggregate amount equal to all Prepayment Premiums and Yield Maintenance Charges
actually collected on the Loans or any REO Loans during the related Due Period
and shall be deemed to distribute such amount to the Uncertificated Lower-Tier
Interests, pro rata in proportion to their outstanding Lower-Tier Principal
Amounts.
On each Distribution Date, the Trustee shall withdraw any amounts
on deposit in the Upper-Tier Distribution Account that represent Yield
Maintenance Charges actually collected on Loans or REO Loans during the related
Due Period and remitted in respect of the Uncertificated Lower-Tier Interests
pursuant to Section 4.01(d), and shall distribute such amounts as follows:
Yield Maintenance Charges shall be distributed to the Class X-0, Xxxxx
X-0, Class A-AB, Class A-3, Class A-1-A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates, in
an amount equal to the product of (a) a fraction whose numerator is the
amount distributed as principal to such Class on such Distribution Date
that is attributable to the Loan Group that includes the prepaid Mortgage
Loan, and whose denominator is the total amount distributed as principal
that is attributable to the Loan Group that includes the prepaid Mortgage
Loan to the Class A-1, Class A-2, Class A-AB, Class A-3, Class A-1-A,
Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P
and Class Q Certificates on such Distribution Date, (b) the Base Interest
Fraction for the related Principal Prepayment and such Class of
Certificates and (c) the aggregate amount of Yield Maintenance Charges
collected on such Principal Prepayment during the related Due Period. Any
Yield Maintenance Charges collected during the related Due Period
remaining after the distributions contemplated in the prior two sentences
shall be distributed to the Holders of the Class A-X Certificates.
For purposes of determining the portion of any Yield Maintenance
Charge that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the relevant "Discount Rate" shall be the
same discount rate (exclusive of any applicable spread) used to calculate such
Yield Maintenance Charge, with such discount rate (exclusive of any applicable
spread) converted to a monthly equivalent rate (regardless of whether any
similar conversion occurred at the loan level). The relevant Discount Rate shall
be provided promptly by the Master Servicer to the Trustee.
(e) On any applicable Distribution Date, (i) the Trustee shall
withdraw from the Post-ARD Additional Interest Distribution Account any Post-ARD
Additional Interest collected in respect of the Mortgage Loans for such
Distribution Date and shall distribute such amount to the Class V Certificates;
and (ii) with respect to amounts on deposit in the Excess Liquidation Proceeds
Reserve Account, the Trustee shall distribute such amount to the
Certificateholders, in sequential order, after first distributing such amount
from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Related
Uncertificated Lower-Tier Interest, as reimbursement for previously allocated
Realized Losses and shall distribute all amounts remaining in the Excess
Liquidation Proceeds Reserve Account thereafter to the holders of the Class LR
Certificates.
(f) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
of such Class based on their respective Percentage Interests. Except as
otherwise specifically provided in Sections 4.01(h), 4.01(i) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of record of the respective Class 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 written wiring
instructions 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) and otherwise by check mailed to the address of such Certificateholder as
it appears in the Certificate Register. The final distribution on each
Certificate (determined without regard to any possible future reimbursement of
Realized Loss previously allocated to such Certificate) shall be made in like
manner, but only upon presentation and surrender of such Certificate at the
offices of the Trustee or such other location specified in the notice to
Certificateholders of such final distribution.
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 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 Certificate Owners that it represents. None of the Trustee, the
Depositor, the Master Servicer, the Special Servicer, the Underwriters or the
Initial Purchaser shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Realized Loss previously allocated to such Class of Certificates)
will be made on the next Distribution Date, the Trustee shall, as soon as
practicable prior to the final Distribution Date for such Class, post a notice
on the Website to the effect that no interest shall accrue on such Certificates
from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Definitive
Certificates of any 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 Definitive Certificates
as to which notice has been given pursuant to this Section 4.01(g) shall not
have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Definitive 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 Definitive
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Definitive 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 Definitive 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 Definitive Certificateholder on any amount
held in trust hereunder by the Trustee as a result of such Definitive
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with Section 4.01(h).
(h) Distributions in reimbursement of Realized Loss previously
allocated to the Regular Certificates shall be made in the amounts and manner
specified in Section 4.01(a) to the Holders of the respective Class otherwise
entitled to distributions of interest and principal on such Class on the
relevant Distribution Date; provided, however, that all distributions in
reimbursement of Realized Loss previously allocated to a Class of Certificates
which has since been retired shall be to the prior Holders that surrendered the
Certificates of such Class upon retirement thereof and shall be made by check
mailed to the address of each such prior Holder last shown in the Certificate
Register, and such amounts shall be deemed to have been distributed from the
Lower-Tier REMIC to the Upper-Tier REMIC in each case as such Realized Loss was
allocated to the Uncertificated Lower-Tier REMIC Interests pursuant to Section
4.04(b). Notice of any such distribution to a prior Holder shall be made in
accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(i) as if such Holder had failed to surrender
its Certificates.
(i) Shortfalls in the Available Distribution Amount resulting from
unanticipated Trust Fund indemnification expenses incurred pursuant to Section
6.03 and Section 8.05 shall be allocated to the most subordinate Class of
Certificates then outstanding, until the Class Principal Balance thereof is
reduced to zero, and then is allocated to the next most subordinate Class of
Certificate then outstanding. Such shortfalls shall be allocated to the
Uncertificated Lower-Tier Interests in the same manner as Realized Losses. (j)
The rights of the Certificateholders to receive distributions from the proceeds
of the Trust Fund in respect of their 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 previously distributed on the
Certificates in accordance with this Agreement.
Section 4.02 Trustee Report; Certain Other Reports
(a) Based solely on information provided to the Trustee by the
Master Servicer pursuant to Section 3.12 and this Section 4.02, the Trustee
shall prepare (or cause to be prepared) and, on each Distribution Date, provide
or make available electronically (or, upon request, by first class mail) to each
Privileged Person a statement substantially in the form of, and containing the
information set forth in, Exhibit E hereto (the "Trustee Report"), detailing the
distributions on such Distribution Date and the performance, both in the
aggregate and individually to the extent available, of the Mortgage Loans and
the Mortgaged Properties; provided that the Trustee need not deliver to any
Privileged Person or the Series 2006-C3 Controlling Class Representative any
Trustee Report that has been made available to such Person via the Trustee's
internet website as provided below; and provided, further, that the Trustee has
no affirmative obligation to discover the identities of Certificate Owners and
need only react to Persons claiming to be Certificate Owners in accordance with
Section 5.06; and provided, further, that during any period that reports are
required to be filed with the Commission with respect to the Trust pursuant to
Section 15(d) of the Exchange Act, each recipient of the Trustee Report shall be
deemed to have agreed to keep confidential the information therein until such
Trustee Report is filed with the Commission.
The Trustee shall have no obligation to provide the information or
reports described in this Section 4.02(a) until it has received the requisite
information or reports from the Master Servicer provided for herein, and the
Trustee shall not be in default hereunder due to a delay in providing the
Certificateholder Reports caused by the Master Servicer's or the Special
Servicer's failure to timely deliver any information or reports hereunder. None
of the Master Servicer, the Special Servicer or the Trustee shall be responsible
for the accuracy or completeness of any information supplied to it by a
Borrower, each other or a third party, and accepted by it in good faith, that is
included in any reports, statements, materials or information prepared or
provided by the Master Servicer, the Special Servicer or the Trustee, as
applicable. None of the Trustee, the Master Servicer or the Special Servicer
shall have any obligation to verify the accuracy or completeness of any
information provided by a Borrower, a third party or each other.
The Trustee shall make available each month, to the general
public, the related Trustee Report via its internet website initially located at
"xxx.xxxxxxx.xxx." In addition, the Trustee shall make available each month, via
its internet website to the extent received by the Trustee, on a restricted
basis solely to Privileged Persons, (i) the Unrestricted Master Servicer
Reports, (ii) the CMSA Loan Periodic Update File, the CMSA Loan Setup File, CMSA
Bond Level File and the CMSA Collateral Summary File, (iii) and any other report
at the direction of the Depositor and (iv) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the Prospectus and this Agreement. Upon notification by the Depositor
that Credit Suisse has sold the Non-Registered Certificates to unaffiliated
third parties, the Trustee shall remove the restriction provided for in the
preceding sentence and shall make such reports and documents available to the
general public. The Trustee shall also make available each month, on a
restricted basis to any Privileged Person via its internet website, to the
extent received by the Trustee, (i) the Restricted Master Servicer Reports, (ii)
the CMSA Property File and (iii) any other report at the direction of the
Depositor. During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, each recipient of information regarding the Trust on the Trustee's internet
website shall be deemed to have agreed to keep confidential such information
until such information is filed with the Commission, and the Trustee's internet
website shall bear a legend to the following effect:
No recipient shall use or disclose the information contained on
this website in any manner which could result in a violation of
any provision of the Securities Act of 1933 or the Securities
Exchange Act of 1934 or would require registration of any
Non-Registered Certificates pursuant to Section 5 of the
Securities Act of 1933.
The Trustee makes no representations or warranties as to the
accuracy or completeness or 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 (i) that any such
Certificateholder or Certificate Owner, as the case may be, has delivered a
certification substantially in the form of Exhibit K-1 to the Trustee and (ii)
that any prospective investor has delivered a certification substantially in the
form of Exhibit K-2 to the Trustee. The Trustee shall not be liable for the
dissemination of information in accordance herewith. Questions regarding the
Trustee's internet website can be directed to the Trustee's CMBS customer
service desk at (000) 000-0000 or such other number as the Trustee may
hereinafter specify.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) By 12:00 p.m. New York City time on the second Business Day
following each Determination Date, the Master Servicer shall deliver to the
Trustee the CMSA Loan Periodic Update File and supplemental reports reflecting
information as of the close of business on the last day of the Collection Period
with respect to the Mortgage Loans for which it acts as Master Servicer, in a
mutually agreeable electronic format. Such CMSA Loan Periodic Update File and
any written information supplemental thereto shall include such information with
respect to the Mortgage Loans for which it acts as Master Servicer that is
reasonably required by the Trustee for purposes of making the calculations and
preparing the reports for which the Trustee is responsible pursuant to Section
4.01, this Section 4.02, Section 4.04 or any other section of this Agreement, as
set forth in reasonable written specifications or guidelines issued by the
Trustee from time to time. Such information may be delivered by the Master
Servicer to the Trustee in such electronic or other form as may be reasonably
acceptable to the Trustee and such Master Servicer.
Notwithstanding the foregoing, because the Master Servicer will
not receive the Servicing Files until the Closing Date and will not have
sufficient time to review and analyze such Servicing Files before the initial
Distribution Date, the parties agree that the CMSA Loan Periodic Update File
required to be delivered in July 2006 will be based solely upon information
generated from actual collections received by the Master Servicer and from
information the Depositor delivers or causes to be delivered to the Master
Servicer (including but not limited to information prepared by third party
servicers of the Mortgage Loans with respect to the period prior to the Closing
Date). The Special Servicer shall from time to time (and, in any event, as may
be reasonably required by the Master Servicer) provide such Master Servicer with
such information in its possession regarding the Specially Serviced Mortgage
Loans for which it acts as Special Servicer and the related REO Properties as
may be necessary for such Master Servicer to prepare each report and any
supplemental information to be provided by such Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer
or Special Servicer to disclose any information otherwise required to be
disclosed pursuant to Section 4.02(a), this Section 4.02(b) or Section 4.02(c)
shall not constitute a breach of Section 4.02(a), this Section 4.02(b) or of
Section 4.02(c) to the extent such Master Servicer or such Special Servicer so
fails because such disclosure, in the reasonable belief of such Master Servicer
or such Special Servicer, as the case may be, would violate any applicable law
or any provision of a Mortgage Loan Document prohibiting disclosure of
information with respect to the Mortgage Loans or the Mortgaged Properties,
would constitute a waiver of the attorney-client privilege on behalf of the
Trust or would otherwise materially harm the Trust Fund. The Master Servicer or
the Special Servicer may affix to any information provided by it any disclaimer
it deems appropriate in its reasonable discretion (without suggesting liability
on the part of any other party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Certificateholder (i)
a statement containing the aggregate information set forth on page 2 of Exhibit
B to the Prospectus Supplement for such calendar year or applicable portion
thereof during which such person was a Certificateholder and (ii) such other
customary information as the Trustee deems necessary or desirable for
Certificateholders to prepare their federal, state and local income tax returns,
including the amount of original issue discount accrued on the Certificates, if
applicable. The obligations of the Trustee in the immediately preceding sentence
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code. As soon as practicable following the request of any
Certificateholder in writing, the Trustee shall furnish to such
Certificateholder such information regarding the Mortgage Loans and the
Mortgaged Properties as such Certificateholder may reasonably request and, as
has been furnished to, or may otherwise be in the possession of, the Trustee.
The Master Servicer and the Special Servicer shall promptly provide to the
Depositor and the Trustee such information regarding the Mortgage Loans and the
related Mortgaged Properties as such party may reasonably request and that has
been furnished to, or may otherwise be in the possession of, such Master
Servicer or such Special Servicer, as the case may be.
Xxxxxxx 0.00 X&X Advances
(a) On or before 1:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject Section 4.03(c),
either (i) remit from its own funds to the Trustee for deposit into the
Lower-Tier Distribution Account an amount equal to the aggregate amount of P&I
Advances, if any, to be made by the Master Servicer in respect of the Mortgage
Pool for the related Distribution Date, (ii) apply amounts held in the
Collection Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make such P&I Advances, or (iii)
make such P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of such P&I Advances to be made. Any amounts held
in the Collection Account for future distribution and so used to make P&I
Advances in respect of the Mortgage Pool shall be appropriately reflected in the
Master Servicer's records and replaced by the Master Servicer by deposit in the
Collection Account prior to the next succeeding Master Servicer Remittance 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 3:30 p.m., New York City time, on any Master Servicer
Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made by it in respect of the Mortgage Pool on such date pursuant
to this Section 4.03(a) (and shall not have delivered to the Trustee the
Officer's Certificate and other documentation related to a determination of
nonrecoverability of a P&I Advance pursuant to Section 4.03(c) or to the actual
knowledge of a Responsible Officer of the Trustee shall not have remitted any
portion of the Master Servicer Remittance Amount required to be remitted by the
Master Servicer on such date, then the Trustee shall provide notice of such
failure to such Master Servicer by facsimile transmission as soon as possible,
but in any event before 5:00 p.m., New York City time, on such Master Servicer
Remittance Date. If after such notice the Trustee does not receive the full
amount of such P&I Advances in respect of the Mortgage Pool by 11:00 a.m., New
York City time, on the related Distribution Date, then the Trustee shall (not
later than 12:00 noon, New York City time, on the related Distribution Date)
make the portion of such P&I Advances that was required to be, but was not, made
or remitted, as the case may be, by such Master Servicer with respect to the
related Distribution Date, provided that no Master Servicer, Special Servicer or
the Trustee shall make any P&I Advance with respect to any B Loan.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of any related Master
Servicing Fees and Workout Fees, due or deemed due, as the case may be, in
respect of the Mortgage Loans (including 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, in each case to the
extent such amount was not paid by or on behalf of the related Borrower or
otherwise collected by or on behalf of the Trust as of the close of business on
the related Determination Date; provided that, if an Appraisal Reduction Amount
exists with respect to any Required Appraisal Loan, then the interest portion of
any P&I Advance required to be made in respect of such Required Appraisal Loan
for the related Distribution Date shall be reduced (it being herein acknowledged
that there shall be no reduction in the principal portion of such P&I Advance)
to equal the product of (i) the amount of the interest portion of such P&I
Advance that would otherwise be required to be made in respect of such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
shall equal the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, and the denominator of which shall equal the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
(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. In making such recoverability
determination, the Master Servicer, the Special Servicer and the Trustee, as
applicable, will be entitled to (i) give due regard to the existence of any
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to
other Mortgage Loans, the recovery of which, at the time of such consideration,
is being deferred or delayed by the Master Servicer or the Trustee, as
applicable, in light of the fact that proceeds on the related Mortgage Loan are
a source of recovery not only for the P&I Advance under consideration, but also
as a potential source of recovery of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount which is being or may be deferred or
delayed and (ii) consider (among other things) the obligations of the Borrower
under the terms of the related Mortgage Loan (or the related A/B Loan Pair, as
applicable) as it may have been modified, to consider (among other things) the
related Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
applicable Servicing Standard in the case of the Master Servicer and the Special
Servicer) regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, to estimate and consider (consistent with
the applicable Servicing Standard in the case of the Master Servicer and the
Special Servicer) (among other things) future expenses and to estimate and
consider (among other things) the timing of recoveries.
The determination by any Person with an obligation hereunder to
make P&I Advances 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 made by such Person in its reasonable judgment and shall be evidenced
by an Officer's Certificate delivered promptly to the Depositor, the Trustee
(unless it is the Person making such determination) and the Controlling Class
Representative setting forth the basis for such determination, accompanied by a
copy of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination, and further accompanied by
any other information, including engineers' reports, environmental surveys or
similar reports, that such Person may have obtained and that support such
determination.
None of the Master Servicers or Trustee shall make any P&I
Advances with respect to delinquent amounts due on any B Loan. If an Appraisal
of the related Mortgaged Property shall not have been obtained within the prior
12 month period (and the Master Servicer and the Trustee shall each request any
such appraisal from the Special Servicer prior to ordering an Appraisal pursuant
to this sentence) or if such an Appraisal shall have been obtained but as a
result of unforeseen occurrences, such Appraisal does not, in the good faith
determination of the Master Servicer, the Special Servicer or the Trustee,
reflect current market conditions, and the Master Servicer or the Trustee, as
applicable, and the Special Servicer cannot agree on the appropriate downward
adjustment to such Appraisal, such Master Servicer, the Special Servicer or the
Trustee, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust Fund (and, in the case of any A/B Loan Pair, first of the related B Loan
Holders, if any, and second, to the extent such expense remains unpaid, of the
Trust Fund).
(d) The Master Servicer and the Trustee shall each be entitled to
receive interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of each P&I Advance made thereby (with its own funds), for so long
as such P&I Advance is outstanding (or, if such P&I Advance was made prior to
the end of any grace period applicable to the subject delinquent Monthly
Payment, for so long as such P&I Advance is outstanding following the end of
such grace period). Such interest with respect to any P&I Advance shall be
payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any
Default Charges subsequently collected on the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance relates; and (ii) then, after such
P&I Advance is reimbursed, but only if and to the extent that such Default
Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The Master Servicer shall reimburse itself or the Trustee,
as applicable, for any outstanding P&I Advance made thereby as soon as
practicable after funds available for such purpose are deposited in the
Collection Account. Notwithstanding the foregoing, upon a determination that a
P&I Advance previously made with respect to the Mortgage Pool is a
Nonrecoverable P&I Advance, the Master Servicer may reimburse itself or the
Trustee, as applicable, immediately from general collections in the Collection
Account. Notwithstanding the foregoing, instead of obtaining reimbursement out
of general collections on the Mortgage Pool immediately (as contemplated by
Section 3.05(a)(vii), the Master Servicer or the Trustee, as applicable, may, in
its sole discretion, after reimbursement of such amounts up to the principal
portions of general collections, elect to obtain reimbursement for such
Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and
the unreimbursed portion of such P&I Advance will accrue interest at the
Reimbursement Rate in effect from time to time. The Master Servicer must
reimburse itself each month up to the amount of such collections otherwise
allocable as principal. At any time after such a determination to obtain
reimbursement over time in accordance with the preceding sentence, the Master
Servicer or the Trustee, as applicable, may, in its sole discretion, decide to
obtain reimbursement immediately. The fact that a decision to recover such
Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not constitute a
violation of the Servicing Standard by the Master Servicer or a breach of any
fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any
other contractual obligation owed to the Certificateholders by any party to this
Agreement. In no event shall interest accrue in accordance with this Section
4.03(d) on any P&I Advance as to which the corresponding Late Collection was
received by or on behalf of the Trust as of the related Master Servicer
Remittance Date. No Master Servicer shall be entitled to Advance Interest to the
extent a payment is received but is being held by or on behalf of such Master
Servicer in suspense.
Section 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Sections 4.01, the
Trustee shall determine the amount, if any, by which (i) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates, exceeds (ii) the aggregate Stated Principal Balance (for purposes
of this calculation only, not giving effect to any reductions of the Stated
Principal Balance for payments of principal collected on the Mortgage Loans that
were used to reimburse any Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts pursuant to Section 3.05(a)(vi), other than Principal
Distribution Amounts used to reimburse Nonrecoverable Advances or
Workout-Delayed Reimbursement Amounts with respect to Mortgage Loans for which a
Final Recovery Determination has been made) of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the respective Class Principal Balances of the Principal Balance
Certificates will be reduced sequentially, in the following order, until such
excess is reduced to zero: first, the Class Principal Balance of the Class Q
Certificates, until such Class Principal Balance is reduced to zero; second, the
Class Principal Balance of the Class P Certificates, until such Class Principal
Balance is reduced to zero; third, the Class Principal Balance of the Class O
Certificates, until such Class Principal Balance is reduced to zero; fourth, the
Class Principal Balance of the Class N Certificates, until such Class Principal
Balance is reduced to zero; fifth, the Class Principal Balance of the Class M
Certificates, until such Class Principal Balance is reduced to zero; sixth, the
Class Principal Balance of the Class L Certificates, until such Class Principal
Balance is reduced to zero; seventh, the Class Principal Balance of the Class K
Certificates, until such Class Principal Balance is reduced to zero; eighth, the
Class Principal Balance of the Class J Certificates, until such Class Principal
Balance is reduced to zero; ninth, the Class Principal Balance of the Class H
Certificates, until such Class Principal Balance is reduced to zero; tenth, the
Class Principal Balance of the Class G Certificates, until such Class Principal
Balance is reduced to zero; eleventh, the Class Principal Balance of the Class F
Certificates, until such Class Principal Balance is reduced to zero; twelfth,
the Class Principal Balance of the Class E Certificates, until such Class
Principal Balance is reduced to zero; thirteenth, the Class Principal Balance of
the Class D Certificates, until such Class Principal Balance is reduced to zero;
fourteenth, the Class Principal Balance of the Class C Certificates, until such
Class Principal Balance is reduced to zero; fifteenth, the Class Principal
Balance of the Class B Certificates, until such Class Principal Balance is
reduced to zero; sixteenth, the Class Principal Balance of the Class A-J
Certificates, until such Class Principal Balance is reduced to zero, seventeenth
the Class Principal Balance of the Class A-M Certificates, until such Class
Principal Balance is reduced to zero and eighteenth, the respective Class
Principal Balances of the Class A-1 Certificates, the Class A-2 Certificates,
Class A-AB Certificates, Class A-3 Certificates and the Class A-1-A Certificates
(on a pro rata basis in accordance with the relative sizes of such Class
Principal Balances, until such Class Principal Balances are reduced to zero. All
such reductions in the Class Principal Balances of the respective Classes of the
Principal Balance Certificates shall constitute allocations of Realized Losses
and Additional Trust Fund Expenses. Any Realized Loss allocated to a Class of
Certificates will be allocated among respective Certificates of such Class in
proportion to the Percentage Interests evidenced thereby.
(b) With respect to any Distribution Date, any Realized Loss
allocated to a Class of Certificates pursuant to Section 4.04(b) with respect to
such Distribution Date shall reduce the Lower-tier REMIC Principal Amount of the
Corresponding Uncertificated Lower-Tier REMIC Interest as a write-off.
Section 4.05 Calculations
Provided that the Trustee receives the necessary information from
the Master Servicer and/or the Special Servicer, the Trustee shall be
responsible for performing all calculations necessary in connection with the
actual and deemed distributions to be made pursuant to Section 4.01, the
preparation of the Trustee Reports pursuant to Section 4.02(a) and the actual
and deemed allocations of Realized Losses and Additional Trust Fund Expenses to
be made pursuant to Section 4.04. The Trustee shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amounts
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or otherwise verify any information provided to it by the
Master Servicer. The calculations by the Trustee contemplated by this Section
4.05 shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
Section 4.06 Grantor Trust Reporting
The parties intend that the portions of the Trust Fund consisting
of Post-ARD Additional Interest and the Post-ARD Additional Interest
Distribution Account shall constitute, and that the affairs of the Trust Fund
(exclusive of the Upper-Tier REMIC and the Lower-Tier REMIC) shall be conducted
so as to qualify such portion as, a "grantor trust" under the Code, and the
provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to Class V Certificateholders and shall file, or cause to be filed
with the Internal Revenue Service, together with Form 1041 or such other form as
may be applicable, information returns with respect to income relating to their
share of Post-ARD Additional Interest and, at the time or times and in the
manner required by the Code.
Section 4.07 Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Certificateholder that is (A) a United
States Tax Person that has furnished or caused to be furnished a Form W-9 or an
acceptable substitute form or a successor form (or is exempt from furnishing
such a form), or (B) a Non United States Tax Person that has furnished or caused
to be furnished (i) an effective Form W-8BEN or W-8IMY (with appropriate
attachments) or an acceptable substitute form or a successor form and who is not
a "10 percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
"controlled foreign corporation" described in Code Section 881(c)(3)(C) with
respect to the Trust Fund or the Depositor, or (ii) an effective Form W-8ECI or
an acceptable substitute form or a successor form. In the event the Trustee or
its agent withholds any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates
(a) The Certificates shall consist of 26 Classes with the
following respective alphabetic or alphanumeric Class designations: "A-X,"
"X-0," "X-0," "X-XX," "X-0," "X-0-X," "X-X," "X-X," "X," "X," "D," "E," "F,"
"G," "H," "J," "K," "L," "M," "N," "O," "P," "Q," "R," "LR" and "V,"
respectively. Any reference in any other section or subsection of this Agreement
to any Certificate or Certificates preceded by a Class designation shall be to a
Certificate or Certificates of the Class so designated in this Section 5.01(a).
(b) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-6; provided, however, 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
initially shall (and, at the option of the Depositor, following the Closing
Date, all or a portion of any other Class of Certificates may) 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, in the case of the Interest Only
Certificates, initial Certificate Notional Amounts) as of the Closing Date of
not less than $10,000 and any whole dollar denomination in excess thereof. The
other Regular Interest Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances as of the Closing Date
of not less than $100,000 and any whole dollar denomination in excess thereof.
The Class R Certificates, the Class LR and the Class V Certificates will be
issuable only in denominations representing Percentage Interests in the related
Class of not less than 10.0%.
(c) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatory of the Trustee 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
Certificate Registrar 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
(located as of the Closing Date at Xxxxx Fargo Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate Registrar
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 Trustee may appoint, by a
written instrument delivered to the other parties hereto, any other bank or
trust company to act as Certificate Registrar under such conditions as the
Trustee may prescribe, provided that the Trustee shall not be relieved of any of
its duties or responsibilities hereunder as Certificate Registrar 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
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer and the Special Servicer shall each 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.
If three or more Certificateholders make a written request to the
Trustee, and such request states that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication that such requesting Certificateholders propose to transmit, then
the Trustee shall, within 30 days after the receipt of such request, afford (or
cause any other Certificate Registrar to afford) the requesting
Certificateholders access during normal business hours to, or deliver to the
requesting Certificateholders a copy of, the most recent list of
Certificateholders held by the Certificate Registrar (which list shall be
current as of a date no earlier than 30 days prior to the Trustee's receipt of
such request). Every Certificateholder, by receiving such access, acknowledges
that neither the Certificate Registrar nor the Trustee will be held accountable
in any way by reason of the disclosure of any information as to the names and
addresses of any Certificateholder regardless of the source from which such
information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition 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 any Non-Registered Certificate 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 such Non-Registered
Certificate by the Depositor or an Affiliate of the Depositor or, in the case of
a Global Certificate, any transfer of such Certificate to a successor Depository
or, in the case of a Definitive Certificate issued with respect to a Global
Certificate, any transfer of such Certificate to the applicable Certificate
Owner in accordance with Section 5.03(c), 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 hereto as
Exhibit F-1A; or (ii) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit F-1B
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit F-2A or as Exhibit
F-2B; or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect
that such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust 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.
Each Global Certificate shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository.
If a transfer of an interest in any Rule 144A Global Certificate
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 an
interest in such Rule 144A Global Certificate by the Depositor or an Affiliate
of the Depositor), then (except as provided in the next succeeding paragraph or
in the penultimate paragraph of this Section 5.02(b) the Certificate Owner
desiring to effect such transfer shall require from its prospective Transferee:
(i) a certificate substantially in the form attached as Exhibit F-2C hereto; 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. Except as provided in the next succeeding paragraph or
in the penultimate paragraph of this Section 5.02(b), any interest in a Rule
144A Global Certificate shall not be transferred to any Person other than a
Qualified Institutional Buyer that takes delivery in the form of an interest in
such Rule 144A Global Certificate. If any Transferee of an interest in a Rule
144A Global Certificate 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 F-2C
hereto are, with respect to the subject transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate with respect to the Class A-X, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P or Class Q
Certificates may be transferred (without delivery of any certificate or Opinion
of Counsel described in clauses (i) and (ii) of the first sentence of the
preceding paragraph) to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for the same Class as
such Rule 144A Global Certificate upon delivery to the Certificate Registrar and
the Trustee of (i) a certificate from the Certificate Owner desiring to effect
such transfer substantially in the form attached hereto as Exhibit F-1D and a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached hereto as Exhibit F-2D and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and/or Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit 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 Class A-X, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P or Class
Q Certificates to be transferred. Upon delivery to 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 with respect to the Class A-X,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P or Class Q Certificates, and increase the denomination of the Regulation
S Global Certificate for such Class, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.
Except as provided in the next succeeding paragraph or in the
penultimate paragraph of this Section 5.02(b), beneficial interests in any
Regulation S Global Certificate shall not be transferred to any Person other
than a non-United States Securities Person that takes delivery in the form of a
beneficial interest in such Regulation S Global Certificate, and the Certificate
Owner desiring to effect such transfer shall be required to obtain from such
prospective Transferee a certification substantially in the form attached hereto
as Exhibit F-2D. On or prior to the Release Date, beneficial interests in any
Regulation S Global Certificate may be held only through Euroclear or
Clearstream.
Notwithstanding the preceding paragraph, following the Release
Date, any interest in the Regulation S Global Certificate with respect to the
Class A-X, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P or Class Q Certificates may be transferred (without delivery
of any certificate described in the first sentence of the preceding paragraph)
to any Person who takes delivery in the form of a beneficial interest in the
Rule 144A Global Certificate for the same Class as such Regulation S Global
Certificate upon delivery to the Certificate Registrar and the Trustee of (i) a
certificate from the Certificate Owner desiring to effect such transfer
substantially in the form attached hereto as Exhibit F-1C and a certificate from
such Certificate Owner's prospective Transferee substantially in the form
attached hereto as Exhibit F-2C and (ii) such written orders and instructions as
are required under the applicable procedures of the Depository, Clearstream
and/or 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 Class A-X, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P or Class
Q Certificates, as applicable, to be transferred. Upon delivery to 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 Regulation S Global Certificate with respect to the
Class A-X, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P or Class Q Certificates, as applicable, and increase the
denomination of the Rule 144A Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
Notwithstanding the foregoing, any interest in a Global
Certificate with respect to the Class A-X, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P or Class Q Certificates may
be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
who 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,
Clearstream and/or Euroclear 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 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, and 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 Certificateholder or Certificate Owner desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor,
Credit Suisse, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if such transfer,
sale, pledge or other disposition 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.
(c) No transfer of any Certificate or interest therein shall be
made to a Plan or 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
Sections 406 or 407 of ERISA or Section 4975 of the Code or Similar Law or would
result in the imposition of an excise tax under Section 4975 of the Code or
Similar Law.
Except in connection with the initial issuance of the Certificates
or any transfer of a Non-Registered Certificate by the Depositor or an Affiliate
of the Depositor or, in the case of a Global Certificate, any transfer of such
Certificate to a successor Depository or, in the case of a Definitive
Certificate issued with respect to a Global Certificate, any transfer of such
Certificate to the applicable Certificate Owner in accordance with Section
5.03(c), the Certificate Registrar shall refuse to register the transfer of a
Non-Registered Certificate unless it has received from the prospective
Transferee any 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) except in the case of a
Class R, Class LR or Class V Certificate, a certification to the effect that the
purchase and continued holding of such Certificate by such prospective
Transferee is exempt from the prohibited transaction provisions of Section 406
and 407 of ERISA, Section 4975 of the Code and Similar Law by reason of Sections
I and III of Prohibited Transaction Class Exemption 95-60 (or comparable
exemption under Similar Law); or (iii) in the case of a Non-Registered
Certificate (other than a Class R, Class LR or Class V Certificate) that is
rated investment grade by at least one of the Rating Agencies and is being
acquired by or on behalf of a Plan in reliance on PTE 89-90 (or comparable
exemption under Similar Law), 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, any Exemption-Favored Party, the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, any Sub-Servicer or any
Borrower with respect to Mortgage Loans constituting more than 5% of the
aggregate unamortized principal 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 a written representation that such
Transferee, if a Plan, 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) except in the case
of a Class R, Class LR or Class V Certificate, a certification of facts and an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee, the Certificate Registrar or the Trust) 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
similar violation of Similar Law or result in the imposition of an excise tax
under Section 4975 of the Code or Similar Law. It is hereby acknowledged that
the form of certification attached hereto as Exhibit G-1 is acceptable for
purposes of the preceding sentence.
Except in connection with the initial issuance of the Certificates
or any transfer of an interest in a Book-Entry Non-Registered Certificate by the
Depositor or an Affiliate of the Depositor, the Certificate Owner desiring to
effect a transfer of an interest in a Book-Entry Non-Registered Certificate
shall 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 interest in such Certificate on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) except in the case of a Class R, Class LR or Class V Certificate, a
certification to the effect that the purchase and continued holding of an
interest in such Certificate by such prospective Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA, Section 4975
of the Code and Similar Law by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60 (or comparable exemption under Similar Law);
or (iii) if such Certificate is not a Class R, Class LR or Class V Certificate,
if such Certificate is rated investment grade by at least one of the Rating
Agencies and if the interest in such Certificate is being acquired by or on
behalf of a Plan in reliance on PTE 89-90 (or comparable exemption under Similar
Law), 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 or any Borrower with respect to Mortgage Loans constituting
more than 5% of the aggregate unamortized principal 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 a written representation
that such Transferee, if a Plan, 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) except in the case
of a Class R, Class LR or Class V Certificate, a certification of facts and an
Opinion of Counsel to the effect that such transfer will not result in a
violation of Sections 406 or 407 of ERISA, Section 4975 of the Code or Similar
Law or result in the imposition of an excise tax under Section 4975 of the Code
or Similar Law. It is hereby acknowledged that the form of certification
attached hereto as Exhibit G-2 is acceptable for purposes of the preceding
sentence.
Each Transferee of any Registered Certificate or interest therein
or of an interest in any Book-Entry Non-Registered Certificate 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 continued holding of such Certificate or interest
therein by such Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA, Section 4975 of the Code and Similar Law.
(d) (i) Each Person who has or acquires any Ownership Interest
in a Class R or Class LR 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 (d)(ii) below to deliver payments to a Person other than such
Person and, further, to negotiate the terms of any mandatory disposition
and to execute all instruments of Transfer and do all other things
necessary in connection with any such disposition. The rights of each
Person acquiring any Ownership Interest in a Class R or Class LR
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Class R or Class LR Certificate shall
be a Permitted Transferee and shall promptly notify
the Trustee 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 or Class LR
Certificate, the Certificate Registrar shall require
delivery to it, and shall not register the Transfer
of any Class R or Class LR Certificate until its
receipt, of an affidavit substantially in the form
attached hereto as Exhibit H-1 (a "Residual Transfer
Affidavit"), from the proposed Transferee,
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 or Class LR 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 or Class LR
Certificate it will endeavor to remain a Permitted
Transferee, 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 Residual Transfer
Affidavit by a proposed Transferee under clause (B)
above, if a Responsible Officer of either the
Trustee or the Certificate Registrar has actual
knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership
Interest in a Class R or Class LR Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Class R or Class LR Certificate shall
agree (1) to require a Residual Transfer Affidavit
from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such
Class R or Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class R or
Class LR Certificate unless it provides to the
Certificate Registrar and the Trustee a certificate
substantially in the form attached hereto as Exhibit
H-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 or Class LR Certificate, by
purchasing such Ownership Interest, agrees to give
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 or Class LR
Certificate if it is, or is holding an Ownership
Interest in a Class R or Class LR Certificate on
behalf of, a "pass-through interest holder."
(ii) If any purported Transferee shall become a Holder of a Class
R or Class LR Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Class R or Class LR
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 or Class LR Certificate. None of the Depositor,
the Trustee or the Certificate Registrar shall be under any liability to
any Person for any registration of Transfer of a Class R or Class LR
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.
If any purported Transferee shall become a Holder of a Class R or
Class LR Certificate in violation of the restrictions in this Section
5.02(d), then, to the extent that retroactive restoration of the rights
of the preceding Holder of such Class R or Class LR Certificate as
described in the preceding paragraph of this clause (d)(ii) shall be
invalid, illegal or unenforceable, the Trustee shall have the right, but
not the obligation, to cause the transfer of such Class R or Class LR
Certificate to a Permitted Transferee selected by the Trustee on such
terms as the Trustee may choose, and the Trustee shall not be liable to
any Person having an Ownership Interest in such Class R or Class LR
Certificate or any other Person as a result of its exercise of such
discretion. Such purported Transferee shall promptly endorse and deliver
such Class R or Class LR Certificate in accordance with the instructions
of the Trustee. Such Permitted Transferee may be the Trustee itself or
any Affiliate of the Trustee.
(iii) The Trustee shall make available to the IRS and to those
Persons specified by the REMIC Provisions all information furnished to it
by the other parties hereto necessary to compute any tax imposed (A) as a
result of the Transfer of an Ownership Interest in a Class R or Class LR
Certificate to any Person who is a Disqualified Organization, 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" for the
Upper-Tier REMIC and the Lower-Tier REMIC and (B) as a result of any
regulated investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organization described in Section
1381 of the Code that holds an Ownership Interest in a Class R or Class
LR Certificate having as among its record holders at any time any Person
which is a Disqualified Organization, and each of the other parties
hereto shall furnish to the Trustee all information in its possession
necessary for the Trustee to discharge such obligation. The Person
holding such Ownership Interest shall be responsible for the reasonable
compensation of the Trustee 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 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 result in an
Adverse Rating Event with respect to any Class of
Rated Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, 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 Trustee or the Trust),
to the effect that doing so will not (1) cause
either Trust REMIC to cease to qualify as a REMIC or
be subject to an entity-level tax caused by the
Transfer of any Class R or Class LR Certificate to a
Person which is not a Permitted Transferee or (2)
cause a Person other than the prospective Transferee
to be subject to a REMIC-related tax caused by the
Transfer of a Class R or Class LR Certificate to a
Person that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate as a
fiduciary or agent for one or more accounts, such Person shall be required to
deliver to the Certificate Registrar a certification to the effect that, and
such other evidence as may be reasonably required by the Trustee to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the applicable foregoing acknowledgments,
representations, warranties, certifications and/or agreements with respect to
each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) 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 Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(g) 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, 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 Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(h) 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.
(i) No service charge shall be imposed for any 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.
(j) 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.
(k) The Certificate Registrar or the Trustee shall provide to each
of the other parties hereto, upon reasonable written request and at the expense
of the requesting party, an updated copy of the Certificate Register.
Section 5.03 Book-Entry Certificates
(a) The Regular Certificates shall, in the case of each Class
thereof, initially be issued (and, at the option of the Depositor, subsequent to
the Closing Date, all or any portion of any other Class of Certificates may 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) or Section 5.03(c),
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, subject to Section 5.02,
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) or Section 5.03(c) below, shall not be entitled to fully
registered, physical Certificates ("Definitive Certificates") in respect of such
Ownership Interests. 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 indirect
participating 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 indirect
participating brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures.
(b) Except as expressly provided to the contrary herein, the
Depositor, the Master Servicer, the Special Servicer, the Trustee 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 respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. Except as
expressly provided to the contrary herein, 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 indirect participating 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 discharge properly its responsibilities with respect to any Class of
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to all or any portion of any Class of
Book-Entry Certificates, 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 any Class of
Book-Entry Certificates (or any portion of any Class thereof) by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall execute, and the Certificate Registrar shall
authenticate and deliver, the Definitive Certificates in respect of such Class
(or portion thereof) 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 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 Book-Entry 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.
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 or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
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 reasonable expenses (including the reasonable 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 Trust Fund, 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 the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and 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.
Section 5.06 Certification by Certificateholders and Certificate
Owners
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02.
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificateholder or a
Certificate Owner, the Trustee shall make such determination based on a
certificate of such Person which shall be substantially in the form of paragraph
1 of Exhibit K-1 hereto (or such other form as shall be reasonably acceptable to
the Trustee) and shall specify the Class and Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of the Book-Entry Certificate
beneficially owned; provided, however, that the Trustee shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the knowledge of
a Responsible Officer of the Trustee, acquired its Ownership Interest in a
Book-Entry Certificate in violation of Section 5.02, or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee from the Depository, Depository Participants
and/or indirect participating brokerage firms for which Depository Participants
act as agents, with respect to the identity of a Certificate Owner. The Trustee
shall exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee.
Section 5.07 Appointment of Paying Agent
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Servicer, to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee that such Paying Agent will hold all sums held by it for the
payment to Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums have been paid to the Certificateholders or
disposed of as otherwise provided herein. The initial Paying Agent shall be the
Trustee. Except for the Trustee, as the initial Paying Agent, the Paying Agent
shall at all times be an entity having a long-term unsecured debt rating of at
least "A+" by S&P and "A1" by Xxxxx'x.
Notwithstanding the foregoing in this Section 5.07, the
appointment of the Paying Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Paying Agent.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and
the Special Servicer
The Depositor, the Master Servicer and the Special Servicer 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 or the Special Servicer, as applicable, herein.
Section 6.02 Merger, Consolidation or Conversion of the
Depositor, the Master Servicer or the Special
Servicer
(a) Subject to Section 6.02(b), the Depositor, the Master Servicer
and the Special Servicer shall each keep in full effect its existence, rights
and franchises as a corporation, bank, trust company, partnership, limited
liability company, association or other legal entity under the laws of the
jurisdiction wherein it was organized, and each shall obtain and preserve its
qualification to do business as a foreign 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 Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicer and 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 to any Person
(other than the Trustee), 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 of the
Depositor, the Master Servicer or the Special Servicer, shall be the successor
of the Depositor, such Master Servicer or such 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)
such succession will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates (as confirmed in writing to the Trustee by each
Rating Agency) and (ii) such successor or surviving Person makes the applicable
representations and warranties set forth in Section 2.05 (in the case of a
successor or surviving Person to the Master Servicer); or Section 2.06 (in the
case of a successor or surviving Person to the Special Servicer); as applicable,
in each case as modified appropriately with respect to such successor's form and
jurisdiction of organization.
Section 6.03 Limitation on Liability of the Trustee, the
Depositor, the Master Servicer, the Special Servicer
and Others
(a) None of the Depositor, the Trustee, the Master Servicer, the
Special Servicer nor any of the Affiliates, directors, partners, members,
managers, shareholders, officers, employees or agents of any of them shall be
under any liability to the Trust Fund, the Underwriters, the parties hereto, the
Certificateholders, the holders of any B Loan or any other Person 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 this
provision shall not protect the Depositor, the Trustee, the Master Servicer or
the Special Servicer against any breach of warranties or representations made
herein or 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 negligent disregard of obligations and duties hereunder. The Depositor, the
Master Servicer, the Special Servicer, the Trustee and any Affiliate, director,
partner, member, manager, shareholder, officer, employee or agent of the
Depositor, the Trustee, 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, the
Trustee and any Affiliate, director, shareholder, member, partner, manager,
officer, employee or agent of any of the foregoing shall be indemnified and held
harmless by the Trust Fund and/or any affected B Loan Holder(s) out of the
Collection Account or the Distribution Account, as applicable in accordance with
Section 3.05 (or, insofar as an A/B Loan Pair is involved, and to the extent
permitted by the related Intercreditor Agreement, first out of amounts
attributable to such A/B Loan Pair on deposit in the related A/B Loan Pair
Custodial Account as provided in Section 3.05 and then out of the Collection
Account), against any loss, liability or expense (including legal fees and
expenses) incurred in connection with any legal action or claim relating to this
Agreement, the Trust Mortgage Loans, any B Loan or the Certificates, other than
any loss, liability or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof or that would otherwise constitute a Servicing
Advance; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of negligent disregard of such obligations or duties or
(iv) in the case of the Depositor and any of its directors, officers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities law.
(b) None of the Depositor, the Trustee, the Master Servicer or the
Special Servicer shall be under any obligation to appear in, prosecute or defend
any legal or administrative action, proceeding, hearing or examination that is
not incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability which it is not reasonably
assured of reimbursement thereof by the Trust; provided, however, that the
Depositor, the Master Servicer, the Special Servicer or the Trustee may in its
discretion undertake any such action, proceeding, hearing or examination that it
may deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal fees, expenses and costs of such action,
proceeding, hearing or examination and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Master Servicer, the Special Servicer and the Trustee shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on deposit
in the Collection Account as provided by Section 3.05(a) (or, insofar as an A/B
Loan Pair is involved, and to the extent permitted by the related Intercreditor
Agreement, first, out of amounts attributable to such A/B Loan Pair on deposit
in the related A/B Loan Pair Custodial Account as provided in Section 3.05 and
then out of the Collection Account).
In addition, neither the Master Servicer nor the Special Servicer
shall have any liability with respect to, and each shall be entitled to rely as
to the truth of the statements made and the correctness of the opinions
expressed therein on, any certificates or opinions furnished to the Master
Servicer or the Special Servicer, as the case may be, and conforming to the
requirements of this Agreement. The Master Servicer and the Special Servicer may
rely in good faith on information provided to it by the other parties hereto
(unless the provider and the recipient of such information are the same Person
or Affiliates) and by the Borrowers, and will have no duty to investigate or
verify the accuracy thereof.
(c) Each of the Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trust Fund and the Trustee, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any willful misfeasance, bad faith or negligence
of the Master Servicer or the Special Servicer, as the case may be, in the
performance of its obligations and duties under this Agreement or by reason of
negligent disregard by the Master Servicer or the Special Servicer, as the case
may be, of its duties and obligations hereunder or by reason of breach of any
representations or warranties made by it herein. The Master Servicer and the
Special Servicer may consult with counsel, and any written advice or Opinion of
Counsel shall be full and complete authorization and protection with respect to
any action taken or suffered or omitted by it hereunder in good faith in
accordance with the Servicing Standard and in accordance with such advice or
Opinion of Counsel relating to (i) tax matters, (ii) any amendment of this
Agreement under Article XI, (iii) the defeasance of any Defeasance Mortgage Loan
or (iv) any matter involving legal proceedings with a Borrower.
The Trustee shall immediately notify the Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Trust Fund or the
Trustee to indemnification hereunder, whereupon the Master Servicer or Special
Servicer, as the case may be, shall assume the defense of such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer or
Special Servicer, as the case may be, shall not affect any rights that the Trust
Fund or the Trustee, as the case may be, may have to indemnification under this
Agreement or otherwise, unless the Master Servicer's or Special Servicer's, as
the case may be, defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the indemnifying party.
The Depositor shall immediately notify the Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Depositor to
indemnification hereunder, whereupon the Master Servicer or Special Servicer, as
the case may be, shall assume the defense of such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer or Special
Servicer, as the case may be, shall not affect any rights that the Depositor may
have to indemnification under this Agreement or otherwise, unless the Master
Servicer's or Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying party.
The Depositor agrees to indemnify the Master Servicer, the Special
Servicer and the Trustee and any Affiliate, director, officer, member, manager,
partner, shareholder, employee or agent thereof, and hold them harmless, from
and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any breach of representations and warranties or
failure in the performance of the Depositor's obligations and duties under this
Agreement. The Master Servicer, the Special Servicer or the Trustee, as
applicable, shall promptly notify the Depositor if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans entitling it to
indemnification hereunder, whereupon the Depositor shall assume the defense of
such claim and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Depositor shall not affect any rights that any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement.
The Trustee agrees to indemnify the Master Servicer, the Special
Servicer and the Depositor and any Affiliate, director, officer, shareholder,
partner, member, manager, employee or agent thereof, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any breach of representations and warranties made
by it herein or as a result of any willful misfeasance, bad faith or negligence
of the Trustee in the performance of its obligations and duties under this
Agreement or the negligent disregard by the Trustee of its duties and
obligations hereunder. The Depositor, Master Servicer or the Special Servicer,
as applicable, shall promptly notify the Trustee, if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans entitling it to
indemnification hereunder, whereupon the Trustee, shall assume the defense of
such claim and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Trustee shall not affect any rights that any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless the Trustee's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the indemnifying party.
Section 6.04 Resignation of the Master Servicer or the Special
Servicer
(a) The Master Servicer and the Special Servicer may 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 such Master Servicer or such Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by such Master Servicer or such 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 the Special
Servicer's (as the case may be) 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 6.04(b) or Section 7.02 hereof; provided that, if no
successor master servicer or special servicer, as applicable, shall have been so
appointed and have accepted appointment within 90 days after such Master
Servicer or such Special Servicer, as the case may be, has given notice of such
resignation, the resigning Master Servicer or Special Servicer, as applicable,
may petition any court of competent jurisdiction for the appointment of a
successor thereto.
(b) In addition, the Master Servicer and the Special Servicer
shall have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
reasonably acceptable to the Depositor and the Trustee has been found, (ii) each
of the Rating Agencies confirms to the Trustee in writing that the successor's
appointment will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment prior
to the effectiveness of such resignation.
(c) Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated in subsections (a) and (b) of this
Section 6.04. Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall (except in connection with any resignation thereby
permitted above in this Section 6.04 or as otherwise expressly provided herein,
including the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, 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
entire amount of compensation payable to such Master Servicer or such Special
Servicer as the case may be, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor, except to the extent
provided in Section 3.11(c).
Section 6.05 Rights of the Depositor and the Trustee in Respect
of the Master Servicer and the Special Servicer
The Master Servicer and the Special Servicer shall afford the
Depositor, the Trustee, the Controlling Class Representative and each Rating
Agency, upon reasonable notice, during normal business hours access to all
records maintained by it in respect of its rights and obligations hereunder and
with respect to any of the Mortgage Loans and, at mutually agreeable times,
access to such of its officers as are responsible for such obligations
;provided, that the Controlling Class Representative shall have additional
access to information as provided in Section 3.15(c) and Section 8.12(b) hereof.
Upon reasonable request, the Master Servicer and the Special Servicer shall
furnish the Depositor and the Trustee with its most recent publicly available
annual audited financial statements (or, if not available, the most recent
publicly available audited annual financial statements of its corporate parent)
and such other information as is publicly available regarding its business,
affairs, property and condition, financial or otherwise; provided that neither
the Depositor nor the Trustee may disclose the contents of such financial
statements or other information to non-affiliated third parties (other than
accountants, attorneys, financial advisors and other representatives retained to
help it evaluate such financial statements or other information), unless it is
required to do so under applicable securities laws or is otherwise compelled to
do so as a matter of law. The Master Servicer and the Special Servicer may affix
to any such information described in this Section 6.05 provided by it any
disclaimer it deems appropriate in its reasonable discretion. The Depositor may,
but is not obligated to, enforce the obligations of the Master Servicer and
Special Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer or the
Special Servicer hereunder or exercise the rights of the Master Servicer or the
Special Servicer hereunder; 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 Master Servicer or Special Servicer as Owner of a
Certificate
The Master Servicer, the Special Servicer or any Affiliate of any
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer, the Special Servicer or an Affiliate of any of
them. 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, such Master Servicer or such Special Servicer, as the case may
be, proposes to take any action (including for this purpose, omitting to take a
particular action) that is not expressly prohibited by the terms hereof and
would not, in such Master Servicer's or such Special Servicer's, as the case may
be, reasonable judgment, violate the Servicing Standard, but that, if taken,
might nonetheless, in such Master Servicer's or such Special Servicer's, as the
case may be, reasonable judgment, be considered by other Persons to violate the
Servicing Standard, then such Master Servicer or such Special Servicer, as the
case may be, 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 6.06, (b) identifies the Percentage
Interest in each Class of Certificates beneficially owned by such Master
Servicer or such Special Servicer, as the case may be, or by an Affiliate
thereof and (c) describes in reasonable detail the action that such Master
Servicer or such Special Servicer, as the case may be, 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 a request for approval by the
Certificateholders of each such proposed action. 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, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Trustee shall
be entitled to reimbursement from such Master Servicer or such 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.
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 a
Collection Account any amount required to be so deposited under this
Agreement, which failure continues unremedied for two Business Days
following the date on which such deposit was first required to be made;
or
(ii) any failure by the Special Servicer to deposit into an REO
Account or a Collection Account, or to remit to the Master Servicer for
deposit into a Collection Account, any amount required to be so deposited
or remitted under this Agreement, which failure continues unremedied for
two Business Days following the date on which such deposit or remittance,
as the case may be, was first required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee
for deposit into the Distribution Account, on any Master Servicer
Remittance Date, the full amount of P&I Advances required to be made on
such date or, on any Master Servicer Remittance Date, the full amount of
the Master Servicer Remittance Amount and any Compensating Interest
Payment required to be remitted on such date, which failure continues
unremedied until 11:00 a.m. (New York City time) on the related
Distribution Date; provided, however, that if the Master Servicer fails
to timely make any such remittance required to be made to the Trustee on
a Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee (for the account of the Trustee) interest on any amount not
timely remitted at the Prime Rate from and including such Master Servicer
Remittance Date to but excluding the date such remittance is actually
made; or
(iv) 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 three Business Days following the
date on which notice shall have been given to such Master Servicer as
provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or request
the Master Servicer to make) any Servicing Advance required to be made by
it hereunder, which Servicing Advance remains unmade for a period of
three Business Days following the date on which notice has been given to
such Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of such Master Servicer or such
Special Servicer, as the case may be, contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to such Master Servicer or such Special Servicer,
as the case may be, by any other party hereto or to such Master Servicer
or such 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 or by the Controlling Class Representative; provided,
however, that with respect to any such breach which is not curable within
such 30-day period such Master Servicer or such Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect
such cure so long as such delay does not materially and adversely affect
the Certificateholders and such Master Servicer or such Special Servicer,
as the case may be, has commenced to cure such failure within the initial
30-day period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to pursue, a
full cure; or
(vii) 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 and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to such Master Servicer or such Special
Servicer, as the case may be, by any other party hereto or to such Master
Servicer or such 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 or by the Controlling Class
Representative; provided, however, that with respect to any such breach
which is not curable within such 30-day period, such Master Servicer or
such Special Servicer, as the case may be, shall have an additional cure
period of 30 days to effect such cure so long as such delay does not
materially and adversely affect the Certificateholders and such Master
Servicer or such Special Servicer, as the case may be, has commenced to
cure such breach within the initial 30-day period and has provided the
Trustee with an Officer's Certificate certifying that it has diligently
pursued, and is continuing to pursue, a full cure; or
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been entered
against the 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; or
(ix) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to it or of or relating to all or substantially all of its
property; or
(x) 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
(xi) Xxxxx'x has (A) qualified, downgraded or withdrawn its rating
or ratings of one or more Classes of Certificates, or (B) placed one or
more Classes of Certificates on "watch status" in contemplation of
possible rating downgrade or withdrawal (and such "watch status"
placement shall not have been withdrawn by Xxxxx'x within 60 days of such
placement), and, in case of either of clause (A) or (B), citing servicing
concerns with the Master Servicer or Special Servicer as the sole or a
material factor in such rating action; or
(xii) the Master Servicer is removed from S&P's Select Servicer
List as a U.S. Commercial Mortgage Master Servicer, or the Special
Servicer is removed from S&P's Select Servicer List as a U.S. Commercial
Mortgage Special Servicer, and the Master Servicer or the Special
Servicer, as the case may be, is not reinstated to such status on such
list within 60 days after its removal therefrom; or
(xiii) subject to Section 12.16(c), the Master Servicer or Special
Servicer shall fail to deliver any Exchange Act reporting items required
to be delivered by such servicer under Article XII (other than items to
be delivered by a Sub-Servicer listed on Exhibit L hereto) by the time
required under Article XII after any applicable grace periods (provided
that with respect to any Servicing Function Participant retained by the
Master Servicer or Special Servicer, as applicable (other than a
Sub-Servicer listed on Exhibit L hereto) (such entity, the "Sub-Servicing
Entity"), the Sub-Servicing Entity will be automatically terminated if it
defaults in accordance with the provision of this clause (xiii) and the
Master Servicer or Special Servicer, as applicable, will be required to
provide the reports required by the related Sub-Servicing Entity and if
the Master Servicer or Special Servicer, as applicable, fails to do so
(beyond the applicable grace period) it shall be an event of default with
respect to the Master Servicer or Special Servicer, as applicable, in
accordance with the provision of this clause (xiii).
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to not less than 25% of the Voting Rights, the Trustee shall (subject
to applicable bankruptcy or insolvency law in the case of clauses (viii) through
(x) of Section 7.01(a), terminate, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than pursuant to Section 3.11
or Section 6.03 and other than as a Holder of any Certificate). From and after
the receipt by the Defaulting Party of such written notice, all authority and
power of the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage 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 Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agrees that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 20 days subsequent to its receipt of
the notice of termination) provide the Trustee with all documents and records
requested thereby to enable the Trustee to assume such Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall otherwise
cooperate with the Trustee in effecting the termination of such Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including the transfer within two Business Days to the Trustee
for administration by it of all cash amounts that at the time are or should have
been credited by such Master Servicer to a Collection Account, the Distribution
Account or any Servicing Account or Reserve Account held by it (if it is the
Defaulting Party) or by such Special Servicer to an REO Account, a Collection
Account or any Servicing Account or Reserve Account held by it (if it is the
Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or REO Property (provided, however, that the Master
Servicer and the Special Servicer shall, if terminated pursuant to this Section
7.01(b), continue to be obligated to pay and entitled to receive all amounts
accrued or owing by or to it under this Agreement on or prior to the date of
such termination, whether in respect of Advances or otherwise, including Workout
Fees (as and to the extent provided in Section 3.11(c), and it and its members,
managers, directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 3.11 and Section 6.03 notwithstanding any
such termination). Any costs or expenses (including those of any other party
hereto) incurred in connection with any actions to be taken by the Master
Servicer or the Special Servicer pursuant to this paragraph shall be borne by
such Master Servicer or Special Servicer, as the case may be (and, in the case
of the Trustee's costs and expenses, if not paid within a reasonable time, shall
be borne by the Trust out of the Collection Account).
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(a) or receives a notice of termination pursuant
to Section 7.01, the Trustee shall be the successor in all respects to such
Master Servicer or such 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 be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on such Master Servicer or such
Special Servicer, as the case may be, by the terms and provisions hereof,
including, if the Master Servicer is the resigning or terminated party, such
Master Servicer's obligation to make Advances; provided, however, 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 cooperate
or to provide information or monies as required by Section 7.01 shall not be
considered a default by the Trustee hereunder. Neither the Trustee nor any other
successor shall be liable for any of the representations and warranties of the
resigning or terminated party or for any losses incurred by the resigning or
terminated party pursuant to Section 3.06 hereunder nor shall the Trustee or any
other successor be required to purchase any Mortgage Loan hereunder. As
compensation therefor, the Trustee shall be entitled to all fees and other
compensation (subject to Section 3.11) which the resigning or terminated party
would have been entitled to for future services rendered if the resigning or
terminated party had continued to act hereunder. Notwithstanding the above, if
it is unwilling to so act, the Trustee may (and, if it is unable to so act, or
if the Trustee is not approved as an acceptable master servicer or special
servicer, as the case may be, by each Rating Agency, or if the Holders of
Certificates entitled to a majority of all the Voting Rights so request in
writing, the Trustee shall), subject to Section 3.25, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established and
qualified institution as the successor to the Master Servicer or the Special
Servicer, as the case may be, hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of such Master Servicer or such
Special Servicer, as the case may be, hereunder; provided, however, that such
appointment does not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by each Rating
Agency). No appointment of a successor to the Master Servicer or the Special
Servicer hereunder shall be effective until the assumption by such successor of
all its responsibilities, duties and liabilities hereunder, and pending such
appointment and assumption, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on the Mortgage Loans or otherwise as it and such successor
shall agree; provided, however, that no such compensation shall be in excess of
that permitted the resigning or terminated party hereunder. The Depositor, the
Trustee, such successor and each other party hereto shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
If the Trustee or an Affiliate acts pursuant to this Section 7.02
as successor to the Master Servicer, it may reduce the related Excess Servicing
Fee Rate to the extent that its or such Affiliate's compensation as successor
Master Servicer would otherwise be below the market rate servicing compensation.
If the Trustee elects to appoint a successor to the Master Servicer other than
itself or an Affiliate pursuant to this Section 7.02, it may reduce the related
Excess Servicing Fee Rate to the extent reasonably necessary (in the sole
discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer that meets the requirements of this Section 7.02.
Section 7.03 Notification to Certificateholders
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of such Master Servicer or
such Special Servicer pursuant to Section 7.01, any appointment of a successor
to such Master Servicer or such Special Servicer pursuant to Section 6.02, 6.04
or 7.02 or the effectiveness of any designation of a new Special Servicer
pursuant to Section 3.25, the Trustee shall give prompt written notice thereof
to Certificateholders at their respective addresses appearing in the Certificate
Register and, to the extent such information has been made available to the
Trustee, to the B Loan Holder.
(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 days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, and the Depositor shall send to the B Loan Holder notice of
such occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi), clause (xii)
or clause (xiii) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, and payment to the Trustee of all costs and expenses incurred by the
Trustee in connection with such default prior to its waiver (which costs shall
be paid by the party requesting such waiver), such Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
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
the same Voting Rights with respect to the matters described above as they would
if registered in the name of any other Person.
Section 7.05 Trustee Advances
If the Master Servicer fails to fulfill its obligations hereunder
to make any Advances, the Trustee shall perform such obligations (x) in
accordance with Section 3.03(c) with respect to Servicing Advances and (y) by
12:00 noon, New York City time, on the related Distribution Date with respect to
P&I Advances. With respect to any such Advance made by the Trustee, the Trustee
shall succeed to all of the Master Servicer's rights with respect to Advances
hereunder, including, without limitation, the Master Servicer's rights of
reimbursement and interest on each Advance at the Reimbursement Rate, and rights
to determine that a proposed Advance is a Nonrecoverable P&I Advance or
Servicing Advance, as the case may be; provided, however, that if Advances made
by both the Trustee and the Master Servicer shall at any time be outstanding, or
any interest on any Advance shall be accrued and unpaid, all amounts available
to repay such Advances and the interest thereon hereunder shall be applied
entirely to the Advances outstanding to the Trustee, until such Advances shall
have been repaid in full, together with all interest accrued thereon, prior to
reimbursement of the Master Servicer for such Advances. The Trustee shall be
entitled to conclusively rely on any notice given with respect to a
Nonrecoverable Advance hereunder.
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 and no permissive right of the Trustee shall be
construed as a duty. If an Event of Default occurs and is continuing then
(subject to Section 8.02(vii) below), 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 which 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. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall make a request to the responsible party to
have the instrument corrected, and if the instrument is not corrected to the
Trustee's reasonable satisfaction, the Trustee will provide notice thereof to
the Certificateholders. 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, 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 willful 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
Trustee's duties and obligations shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any 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 liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to 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 (unless a
higher percentage of Voting Rights is required for such action); and
(iv) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty except in the capacity as successor Master Servicer or successor
Special Servicer (A) to see to any recording, filing or depositing of
this Agreement or any agreement referred to herein or any financing
statement or continuation statement evidencing a security interest, or to
see to the maintenance of any such recording or filing or depositing or
to any re-recording, refiling or redepositing of any thereof, (B) to see
to any insurance, or (C) to confirm or verify the contents of any reports
or certificates of the Master Servicer or Special Servicer delivered to
the Trustee pursuant to this Agreement reasonably believed by the Trustee
to be genuine and to have been signed or presented by the proper party or
parties.
Section 8.02 Certain Matters Affecting the Trustee
Except as otherwise provided in Section 8.01:
(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 not be under any 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 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, in the Trustee's reasonable
opinion, 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; 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;
nothing contained herein shall, however, 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 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, 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 50% 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 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 appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder; provided, further, that the Trustee may not perform any duties
hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, the Trustee shall not
be required to take any action with respect to, or be deemed to have
notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall
have received written notice thereof. In the absence of receipt of such
notice and such actual knowledge otherwise obtained, the Trustee may
conclusively assume that there is no default or Event of Default;
(viii) The Trustee shall not be responsible for any act or
omission of the Master Servicer, the Special Servicer or the Series
2006-C3 Controlling Class Representative Directing Certificateholder
(unless it is acting as the Master Servicer, the Special Servicer or the
Series 2006-C3 Controlling Class Representative, as the case may be) or
of the Depositor; and
(ix) The Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the power
granted hereunder.
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 acknowledgments and expressed intentions of the Trustee in Sections 2.01,
2.02, 2.04, 2.05, 3.01, 10.01, 11.04 and 11.07 shall not be taken as the
statements of the Trustee and the Trustee assumes no responsibility for their
correctness. None of the Master Servicer, Special Servicer or the Trustee makes
any representations as to the validity or sufficiency of this Agreement or of
any Certificate 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, the Special Servicer or the Trustee. 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, the Master Servicer or the Special Servicer, and
accepted by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates
The Trustee, in its individual capacity and not as Trustee, may
become the owner or pledgee of Certificates, and may deal with the Depositor,
the Master Servicer, the Special Servicer, the Initial Purchaser and the
Underwriters in banking transactions, with the same rights each would have if it
were not Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of and
by Trustee
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid Trustee
Fees in respect of the Mortgage Loans and any REO Mortgage Loans through the end
of the most recently ended calendar month, 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. As to
each Mortgage Loan and REO Mortgage Loan, the Trustee Fee, shall accrue during
each calendar month, commencing with June 2006, at the Trustee Fee Rate on a
principal amount equal to the Stated Principal Balance of such Mortgage Loan or
REO Mortgage Loan immediately following the Distribution Date in such calendar
month (or, in the case of June 2006, on a principal amount equal to the Cut-off
Date Principal Balance of the particular Mortgage Loan), whether or not interest
is actually collected on each Mortgage Loan and REO Mortgage Loan. With respect
to each Mortgage Loan and REO Mortgage Loan, the Trustee Fee shall accrue from
time to time on the same Interest Accrual Period as is applicable to such
Mortgage Loan or REO Mortgage Loan. Except as otherwise expressly provided
herein, 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 shall be paid or reimbursed by the Trust Fund upon
its request for all reasonable out-of-pocket expenses and disbursements incurred
by the Trustee pursuant to and in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ) to
the extent such payments are "unanticipated expenses incurred by the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(iii) except any
such expense, disbursement or advance as may arise from its negligence, bad
faith or willful misconduct; provided, however, that subject to Section
8.02(iii), the Trustee shall not refuse to perform any of its duties hereunder
solely as a result of the failure to be paid the Trustee Fee or the Trustee's
expenses .
(c) The Trustee and any Affiliate, director, officer, employee or
agent of the Trustee shall be indemnified and held harmless by the Trust Fund
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement, and expenses incurred in becoming successor
servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, this Agreement, the Mortgage Loans, the
Certificates or any act or omission of the Trustee relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder; provided,
however, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(c) for (i)
allocable overhead, (ii) routine expenses or disbursements incurred or made by
or on behalf of the Trustee in the normal course of the Trustee's performing its
duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (iv) 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 negligent disregard of such obligations or duties, or as may arise from a
breach of any representation or warranty of the Trustee made herein. The
provisions of this Section 8.05(c) shall survive any resignation or removal of
the Trustee and appointment of a successor thereto.
Section 8.06 Eligibility Requirements for Trustee
The Trustee hereunder shall at all times be, and will be required
to resign if it fails to be, (i) a corporation, bank, trust company or banking
association, organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such laws
to exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Depositor, Master Servicer or the Special Servicer
(except during any period when the Trustee is acting as, or has become successor
to, the Master Servicer or the Special Servicer, as the case may be, pursuant to
Section 7.02), (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "AA-" or higher by S&P and "Aa3" or higher by Xxxxx'x (or such entity as
would not, as evidenced in writing by such Rating Agency, result in the
qualification (as applicable), downgrading or withdrawal of any of the
then-current ratings then assigned thereby to the Certificates).
If such corporation, bank, trust company or national banking
association 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
corporation, bank, trust company or national banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published.
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, all Certificateholders and the B Loan
Holders. Upon receiving such notice of resignation, the Depositor shall promptly
appoint a successor trustee acceptable to the Rating Agencies (as evidenced in
writing by such Rating Agency that such appointment would not result in the
qualification (as applicable), downgrading or withdrawal of any of then-current
ratings then assigned thereby to the Certificates), 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
Master Servicer, the Special Servicer, the Certificateholders and the B Loan
Holders by the Depositor. 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. The resigning Trustee
shall be responsible for the payment of all reasonable expenses incurred in
connection with such resignation and discharge and 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 or if the Depositor has received
notice from the Rating Agencies that failure to remove the Trustee will result
in a downgrade or withdrawal of the then-current rating assigned to any Class of
Certificates, and shall fail to resign after written request therefor by the
Depositor or the Master Servicer, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Trustee and appoint a successor trustee acceptable to the Rating
Agencies (as evidenced in writing by such Rating Agency that such removal and
appointment would not result in the qualification (as applicable), downgrading
or withdrawal of any of then-current ratings then assigned thereby to the
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
Certificateholders and the B Loan Holders 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 so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer, the
remaining Certificateholders and the B Loan Holders by the Master Servicer at
the expense of the Trust Fund. The Trustee shall be reimbursed for all
reasonable costs and expenses incurred by it in connection with such removal
within 30 days of demand therefor from amounts on deposit in the Distribution
Account (provided the Trustee is removed without cause).
Any resignation or removal of the Trustee and appointment of a
successor trustee or 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, 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
is eligible under the provisions of Section 8.06 and is not a Prohibited Party.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the successor trustee shall, at the expense of
the successor trustee, mail notice of the succession of such Trustee hereunder
to the Depositor, the Certificateholders and the B Loan Holders.
Section 8.09 Merger or Consolidation of Trustee
Any Person into which the Trustee may be merged or converted or
with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee, hereunder (provided that such
successor Person shall be eligible under the provisions of Section 8.06),
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee
(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 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 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, 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.
(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 when acting as 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 die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(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, with the consent of the Master Servicer, appoint
at the Trustee's own expense one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee; provided that if the Custodian is
an Affiliate of the Trustee such consent of the Master Servicer need not be
obtained and the Trustee shall inform the Master Servicer of such appointment.
Each Custodian shall be a depositary 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, shall not be the Depositor, any Mortgage Loan
Seller or any Affiliate of the Depositor or any Mortgage Loan Seller, and shall
have in place a fidelity bond and errors and omissions policy, each in such form
and amount as is customarily required of custodians acting on behalf of Xxxxxxx
Mac or Xxxxxx Mae. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian.
Section 8.12 Access to Certain Information
(a) On or prior to the date of the first sale of any
Non-Registered Certificate to an Independent third party, the Depositor shall
provide to the Trustee a copy of any private placement memorandum or other
disclosure document used by the Depositor or its Affiliate in connection with
the offer and sale of the Class of Certificates to which such Non-Registered
Certificate relates. In addition, if any such private placement memorandum or
disclosure document is revised, amended or supplemented at any time following
the delivery thereof to the Trustee, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Trustee a copy of the private
placement memorandum or disclosure document, as revised, amended or
supplemented.
The Trustee shall maintain at its offices primarily responsible
for administering the Trust Fund and shall, upon reasonable advance written
notice, make available during normal business hours for review by any Holder of
a Certificate, each B Loan Holder and its designees, the Depositor, the Master
Servicer, the Special Servicer, the Series 2006-C3 Controlling Class
Representative, any Rating Agency, the Underwriters or any other Person to whom
the Trustee believes such disclosure is appropriate, originals or copies of the
following items to the extent such documents have been delivered to the Trustee:
(i) in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee and (ii) in all
cases, (A) this Agreement and any amendments hereto entered into pursuant to
Section 11.01, (B) the Prospectus and any amendments or supplements thereto, (C)
the respective Mortgage Loan Purchase Agreements and any amendments thereto, (D)
all statements required to be delivered, or otherwise required to be made
available, to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (E) all Officer's Certificates delivered to the Trustee
since the Closing Date pursuant to Section 12.11 or 12.12, (F) all accountants'
reports delivered to the Trustee since the Closing Date pursuant to Section
12.13, (G) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Master Servicer or the Special Servicer and
delivered to the Trustee pursuant to Section 3.20 (but only for so long as the
affected Mortgage Loan is part of the Trust Fund), (H) any and all Officer's
Certificates delivered to the Trustee to support the Master Servicer's
determination that any P&I Advance or Servicing Advance was or, if made, would
be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as the case
may be, (I) any and all of the Mortgage Loan Documents contained in the Mortgage
Files, (J) information regarding the occurrence of Servicing Transfer Events as
to the Trust Mortgage Loans and (K) any and all Sub-Servicing Agreements and any
amendments thereto and modifications thereof.
Copies of any and all of the foregoing items will be available
from the Trustee upon written request; provided, however, that the Trustee shall
be permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies, except in the case of copies
provided to the Rating Agencies, the Master Servicer, the Special Servicer and,
so long as the requests are not excessive or duplicative, to the Series 2006-C3
Controlling Class Representative, which shall be free of charge. In addition,
without limiting the generality of the foregoing, any Requesting Subordinate
Certificateholder may upon written request from the Trustee obtain a copy of any
report delivered to the Rating Agencies under this Agreement.
(b) Notwithstanding anything to the contrary herein, in addition
to the reports and information made available and distributed pursuant to the
terms of this Agreement (including the information set forth in Section 8.12(a),
the Trustee shall, in accordance with such reasonable rules and procedures as it
may adopt (which may include the requirement that an agreement that provides
that such information shall be kept confidential and used solely for purposes of
evaluating the investment characteristics of the Certificates be executed), also
make the reports available to Certificateholders pursuant to Section 4.02, and,
with respect to any A/B Loan Pair, the related B Loan Holder(s), as well as
certain additional information received by the Trustee to any Certificateholder,
the Underwriters, the Initial Purchasers, any Certificate Owner, any B Loan
Holder or any prospective investor identified as such by a Certificate Owner or
the Underwriters or Initial Purchasers or, with respect to any A/B Loan Pair, a
related B Loan Holder, as applicable, that requests such reports or information;
provided that the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information; and provided, further, that no B Loan Holder or
prospective investor in a B Loan shall be entitled to any such report or
information except to the extent that it relates to the subject A/B Loan Pair.
(c) With respect to any information furnished by the Trustee
pursuant to this Section 8.12, the Trustee shall be entitled to indicate the
source of such information and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion. The Trustee shall notify Certificateholders
of the availability of any such information in any manner as it, in its sole
discretion, may determine. In connection with providing access to or copies of
the items described above in this Section 8.12 to Certificateholders,
Certificate Owners, prospective purchasers of Certificates or interests therein
or licensed or registered investment advisors of any of the foregoing, the
Trustee may require: (i) in the case of Certificateholders and Certificate
Owners, a confirmation executed by the requesting Person substantially in form
and substance in the form of Exhibit K-1 or otherwise reasonably acceptable to
the Trustee generally to the effect that such Person is a registered or
beneficial holder of Certificates or an investment advisor representing such
Person and is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential; and (ii) in the case of a prospective purchaser or a licensed or
registered investment advisor representing such Person, confirmation executed by
the requesting Person in form and substance in the form of Exhibit K-2 or
otherwise reasonably acceptable to the Trustee generally to the effect that such
Person is a prospective purchaser of a Certificate or an interest therein or a
licensed or registered investment advisor representing such Person, and is
requesting the information solely for use in evaluating a possible investment in
Certificates and will otherwise keep such information confidential. The Trustee
shall not be liable for the dissemination of information in accordance with this
Agreement.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans
(a) Subject to Section 9.02, the Trust and the respective
obligations and responsibilities under this Agreement of the parties hereto
(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) to the Certificateholders (or any B Loan Holder, if
applicable) 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: (i) the purchase by the Master Servicer, the Special Servicer, or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders of all Mortgage Loans and each REO Property remaining in the
Trust Fund at a price (the "Termination Price") equal to (A) the aggregate
Purchase Price of all the Mortgage Loans remaining in the Trust Fund (exclusive
of any REO Mortgage Loan(s), plus (B) the appraised value of each REO Property,
if any, included in the Trust Fund, such appraisal to be conducted by a
Qualified Appraiser selected by the Special Servicer and approved by the Trustee
and the Master Servicer, minus (C) if the purchaser is the Master Servicer or
the Special Servicer, the aggregate amount of unreimbursed Advances made by such
Person, together with any unpaid Advance Interest in respect of such
unreimbursed Advances and any unpaid servicing compensation payable to such
Person (which items shall be deemed to have been paid or reimbursed to such
Master Servicer or such Special Servicer, as the case may be, in connection with
such purchase); (ii) if the aggregate Class Principal Balance of the Class A-1,
Class A-2, Class B, Class C, Class D and Class E Certificates have been reduced
to zero, the acquisition of all of the Mortgage Loans and REO Properties
remaining in the Trust Fund by the Sole Certificateholder(s) in exchange for all
the remaining Certificates; and (iii) 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; provided, however, that in no event shall the Trust
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.
(b) Any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, the Master Servicer or the Special
Servicer, in that order of preference, may at its option elect to purchase all
the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of Section 9.01(a) by giving written notice to the
other parties hereto (and, in the case of an election by the Master Servicer or
Special Servicer, to the Holders of each Controlling Class) no later than 60
days prior to the anticipated date of purchase; provided, however, that the
aggregate Stated Principal Balance of the Mortgage Pool at the time of such
election is less than 1.0% of the Initial Pool Balance; and provided, further,
that within 30 days after written notice of such election is so given, no Person
with a higher right of priority to make such an election does so; and provided,
further, that if more than one Controlling Class Certificateholder or group of
Controlling Class Certificateholders desire to purchase all of the Mortgage
Loans and any REO Properties, preference shall be given to the Certificateholder
or group of Certificateholders with the largest Percentage Interest in the
Controlling Class. If the Trust is to be terminated in connection with the
purchase of all the Mortgage Loans and each REO Property remaining in the Trust
Fund by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s), such Person(s) shall: deliver to the Master Servicer for
deposit (or, if the Master Servicer is the purchaser, it shall deposit) in a
Collection Account (after the Determination Date, and prior to the Master
Servicer Remittance Date, relating to the anticipated Final Distribution Date)
an amount in immediately available funds equal to the Termination Price; and
(ii) shall reimburse all of the parties hereto (other than itself, if
applicable) for all reasonable out-of-pocket costs and expenses incurred by such
parties in connection with such purchase. On the Master Servicer Remittance Date
for the Final Distribution Date, the Master Servicer shall transfer to the
Lower-Tier Distribution Account all amounts required to be transferred thereto
on such Master Servicer Remittance 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 the deposit of the Termination Price has
been made to the Collection Account and the reimbursement contemplated by the
second preceding sentence has been made to the parties hereto, the Trustee shall
release or cause to be released to the Holders of the Controlling Class, the
Special Servicer or the Master Servicer, as applicable, (or its designee) the
Mortgage Files for the remaining Mortgage Loans and the Trustee shall execute
all assignments, endorsements and other instruments furnished to it by the
Holders of the Controlling Class, the Special Servicer or the Master Servicer,
as applicable, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund and its rights under the
Mortgage Loan Purchase Agreement.
For purposes of this Section 9.01, the Series 2006-C3 Controlling
Class Representative, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Following the date on which the aggregate Certificate Principal
Balance of the Registered Certificates is reduced to zero, the Sole
Certificateholder(s) shall have the right to exchange all of the Certificates
for all of the Mortgage Loans and each REO Property remaining in the Trust Fund
as contemplated by clause (ii) of Section 9.01(a) by giving written notice to
all the parties hereto no later than 60 days prior to the anticipated date of
exchange. In the event that the Sole Certificateholder(s) elect(s) to exchange
all of the Certificates for all of the Mortgage Loans and each REO Property
remaining in the Trust Fund in accordance with the preceding sentence, such Sole
Certificateholder(s), not later than the Business Day prior to the Distribution
Date on which the final distribution on the Certificates is to occur, shall
deposit in each 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 and the Trustee hereunder that may be withdrawn from such
Collection Account pursuant to Section 3.05(a) or that may be withdrawn from the
Lower-Tier Distribution Account pursuant to Section 3.05(b), but only to the
extent that such amounts are not already on deposit in the Collection Account.
In addition, the Master Servicer shall transfer to the Trustee for deposit into
the Lower-Tier Distribution Account all amounts required to be transferred by it
to such account on such Master Servicer Remittance Date from such Collection
Account pursuant to the first paragraph of Section 3.04(b). Upon confirmation
that such final deposits have been made and following the surrender of all the
Certificates on the Final Distribution Date, the Trustee shall release or cause
to be released to the Sole Certificateholder(s) or any designee thereof, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder(s) as shall be necessary to effectuate transfer of the
Mortgage Loans and REO Properties remaining in the Trust Fund.
(c) Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders and each B Loan Holder mailed (x) if
such notice is given in connection with the purchase of all the Mortgage Loans
and each REO Property remaining in the Trust Fund by the Master Servicer, the
Special Servicer or any Certificateholder(s) of the Controlling Class, 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 and (y)
otherwise during the month of such final distribution on or before the Master
Servicer Remittance Date in such month, in any event specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment on
the Certificates will be made, (ii) the amount of any such final payment in
respect of each Class of Certificates 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 office or agency of
the Trustee or such other location therein designated.
(d) After transferring the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and Yield Maintenance Charges distributable
pursuant to Section 4.01(d) to the Upper-Tier Distribution Account pursuant to
Section 3.04(b) and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account that are allocable to payments on
the Class of Certificates so presented and surrendered. Amounts transferred from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of
the final Distribution Date shall be allocated for the purposes, in the amounts
and in accordance with the priority set forth in Sections 4.01(a), 4.01(d) and
4.01(e)(ii) and shall be distributed in termination and liquidation of the
Uncertificated Lower-Tier Interests and the Class LR Certificates in accordance
with Sections 4.01(b), 4.01(d) and 4.01(e)(ii). Any funds not distributed on
such Distribution Date shall be set aside and held uninvested in trust for the
benefit of Certificateholders not presenting and surrendering their Certificates
in the aforesaid manner and shall be disposed of in accordance with this Section
9.01 and Section 4.01(h).
Section 9.02 Additional Termination Requirements
If the Master Servicer, the Special Servicer or a Controlling
Class Certificateholder purchases, or the Sole Certificateholder(s) exchange all
of the Certificates for, all the Mortgage Loans and each REO Property remaining
in the Trust Fund as provided in Section 9.01, the Trust and each REMIC Pool
shall be terminated in accordance with the following additional requirements,
which meet the definition of a "qualified liquidation" of the Lower-Tier REMIC
and the Upper-Tier REMIC, within the meaning of Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to e ach of the Upper-Tier
REMIC's and the Lower-Tier REMIC's final Tax Returns pursuant to Treasury
Regulations Section 1.860F-1;
(ii) within such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of and the Lower-Tier REMIC to such Special
Servicer, the Holders of the Controlling Class or such Master Servicer,
as the case may be, for cash; and
(iii) immediately following the making of the final payment on the
Uncertificated Lower-Tier Interests and the Certificates, the Trustee
shall distribute or credit, or cause to be distributed or credited, to
the Class LR Certificates (in the case of the Lower-Tier REMIC) and the
Class R Certificates (in the case of the Upper-Tier REMIC) all cash on
hand (other than cash retained to meet claims), in the Trust Fund and
each of the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at
that time.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 Tax Administration
(a) The Trustee shall make or cause to be made elections to treat
each of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC under the Code
and, if necessary, under State Tax Laws. Each such election will be made on Form
1066 or other appropriate federal tax or information return or any appropriate
state return for the taxable year ending on the last day of the calendar year in
which the Certificates are issued, which in each case shall be signed by the
Trustee. The Trustee shall designate the "regular interests" and the "residual
interests," within the meaning of the REMIC Provisions, in each REMIC as set
forth in the Preliminary Statement hereto. To the extent the affairs of the
Trust Fund are within their control, the Master Servicer, the Special Servicer
and the Trustee shall not permit the creation of any "interests" (within the
meaning of Section 860G of the Code) in either Trust REMIC other than the
foregoing interests.
(b) The Closing Date is hereby designated as the Startup Day for
the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section
860G(a)(9) of the Code.
(c) [Reserved.]
(d) The Holder of the largest Percentage Interest of the Class LR
Certificates is hereby designated, and by the acceptance of its Class LR
Certificate agrees to act, as Tax Matters Person for the Lower-Tier REMIC. The
Holder of the largest Percentage Interest of the Class R Certificates is hereby
designated, and by the acceptance of its Class R Certificate agrees to act, as
Tax Matters Person for the Upper-Tier REMIC. The Trustee is hereby designated as
the agent of the Tax Matters Person of the Lower-Tier REMIC and the Upper-Tier
REMIC and shall perform all the functions thereof, and the Holders of the Class
LR and Class R Certificates, by their acceptance of such Certificates, agree to
such designation.
(e) The Trustee shall prepare or cause to be prepared all of the
Tax Returns that it reasonably determines are required with respect to each
Trust REMIC created hereunder and shall sign and file or cause to be filed such
Tax Returns in a timely manner. The expenses of preparing such returns shall be
borne by the Trustee without any right of reimbursement therefor.
(f) The Trustee shall provide (i) upon request by any Transferor
of a Class LR or Class R Certificate, such information to such Transferor and
the IRS as is (x) reasonably necessary for the application of any tax relating
to the transfer of a Class LR or Class R Certificate to any Person who is a
Disqualified Organization or (y) otherwise required to be provided by Treasury
Regulations Section 1.860E-2 (and in the time and manner required to be provided
to such person under such Regulations), (ii) to the Certificateholders such
information or reports as are required by the Code, the REMIC Provisions or
State Tax Laws including reports relating to interest, original issue discount
and market discount or premium (using the Prepayment Assumption) and (iii) to
the Internal Revenue Service the name, title, address and telephone number of
the person who will serve as the representative of each of the Trust REMICs.
(g) The Trustee shall take such actions and shall cause the Trust
Fund to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each Trust REMIC as a REMIC under the REMIC Provisions
(and the Master Servicer and Special Servicer shall assist the Trustee, to the
extent reasonably requested by the Trustee to do so). None of the Master
Servicer, the Special Servicer or the Trustee shall knowingly or intentionally
take any action, cause the Trust Fund to take any action or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) cause either
Trust REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a
tax under the REMIC Provisions upon either Trust REMIC (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code) (either such event, an "Adverse REMIC Event") unless such party
receives an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and such party determines
that taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of such party) to the effect that the contemplated action will not, with
respect to either Trust REMIC, cause either Trust REMIC to fail to qualify as a
REMIC or, unless such party (which is acceptable to the Trustee) determines that
the monetary expense to either Trust REMIC is not material and in its sole
discretion to indemnify (to the extent reasonably acceptable to the Trustee) the
Trust Fund against such tax, result in the imposition of such a tax. Wherever in
this Agreement a contemplated action may not be taken because the taking of such
action might result in the imposition of a tax on the Trust Fund, or may be
taken only pursuant to an Opinion of Counsel that such action would impose a tax
on the Trust Fund, such action may nonetheless be taken so long as (x) the
indemnity given in the preceding sentence with respect to any taxes that might
be imposed on the Trust Fund has been given and (y) all other preconditions to
the taking of such action have been satisfied. The Trustee shall not take any
action (whether or not authorized hereunder) as to which the Master Servicer has
advised it in writing that it has received 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 the Trust Fund or its
assets, or causing the Trust Fund to take any action, which is not expressly
permitted under the terms of this Agreement, each of the parties hereto will
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to either
Trust REMIC, and such party shall not take any such action, or cause either
Trust REMIC to take any such action, as to which the Trustee has advised it in
writing that an Adverse REMIC Event could occur. The Trustee 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. At
all times as may be required by the Code, the Trustee will, to the extent within
its control and the scope of its duties as specifically set forth herein,
maintain substantially all of the assets of the Trust Fund as "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.
(h) In the event that any tax is imposed on "prohibited
transactions" of either Trust REMIC as defined in Section 860F(a)(2) of the
Code, on "contributions" to either REMIC after the Startup Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, other than a tax on "net
income from foreclosure property" pursuant to Section 860G(c) of the Code
provisions of state or local tax laws, such tax shall be charged (i) to the
Master Servicer, if such tax arises out of or results from a breach, which
breach constitutes negligence or willful misconduct of such Master Servicer, by
such Master Servicer of any of its obligations under this Agreement and such
breach is not caused by the breach of another party, (ii) to the Trustee, if
such tax arises out of or results from a breach, which breach constitutes
negligence or willful misconduct of the Trustee, by the Trustee of any of its
obligations under this Agreement and such breach is not caused by the breach of
another party, (iii) to the Special Servicer, if such tax arises out of or
results from a breach, which breach constitutes negligence or willful misconduct
of such Special Servicer, by such Special Servicer of any of its obligations
under this Agreement and such breach is not caused by the breach of another
party and (iv) otherwise, against amounts on deposit in the Collection Account,
and on the Distribution Date(s) following such reimbursement the aggregate of
such taxes shall be allocated in reduction of the Optimal Interest Distribution
Amount on each Class entitled thereto in the same manner as if such taxes
constituted a Net Aggregate Prepayment Interest Shortfall.
(i) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each of the Trust REMICs on a calendar year
and on an accrual basis or as otherwise may be required by the REMIC Provisions.
(j) Following the Startup Day, none of the Master Servicer, the
Special Servicer or the Trustee shall accept any contributions of assets to
either Trust REMIC unless the Master Servicer, the Special Servicer and the
Trustee shall have received an Opinion of Counsel (at the expense of the party
seeking to make such contribution) to the effect that the inclusion of such
assets in either Trust REMIC will not cause either Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
either Trust REMIC created hereunder to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(k) None of the Master Servicer, the Special Servicer or the
Trustee shall enter into any arrangement by which either Trust REMIC will
receive a fee or other compensation for services nor, to the extent reasonably
within their control, permit either Trust REMIC to receive an 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.
(l) For the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" of the Uncertificated
Lower-Tier Interests and the Regular Certificates is the Rated Final
Distribution Date.
(m) Within 30 days after the Closing Date, the Trustee shall
obtain a taxpayer identification number for each REMIC Pool on Form SS-4 and
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" (or applicable successor form) for the
Upper-Tier REMIC created hereunder.
(n) None of the Trustee, the Master Servicer or the Special
Servicer shall sell or dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy
of the Trust Fund, (iii) the termination of the Trust Fund pursuant to Article X
of this Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II,
Section 3.18 or Section 9.01 of this Agreement) nor acquire any assets for the
Trust Fund or either Trust REMIC, nor sell or dispose of any investments in the
Collection Account for gain, nor accept any contributions to either Trust REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the Person seeking such sale or acquisition) that such sale or
disposition will not affect adversely the status of either Trust REMIC as a
REMIC or cause either Trust REMIC to be subject to a tax on "prohibited
transactions" or "contributions" pursuant to the REMIC Provisions.
(o) The Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Closing Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
Issue Prices of the Certificates, including without limitation, the price,
yield, original issue discount, issue premium and projected cash flow of the
Certificates. In addition, the Master Servicer, the Special Servicer and the
Depositor shall provide on a timely basis to the Trustee or its designee such
information with respect to the Trust Fund as is in its possession and
reasonably requested by the Trustee to enable it to perform its obligations
under this Article. The Trustee shall be entitled to rely conclusively upon all
such information so provided to it without recalculation or other investigation.
(p) The Trustee shall be entitled to reasonable compensation and
to the reimbursement of its reasonable expenses incurred in the performance of
its duties under this Section 10.01 as may be agreed upon by the Trustee and the
Depositor; provided, however, that the Trustee shall pay out of its own funds,
without any right of reimbursement, any and all ordinary expenses of the Trust
Fund incurred in the performance of its duties under this Article but shall be
reimbursed, except as otherwise expressly provided for herein, by the Trust Fund
for any of its extraordinary expenses, including any taxes or tax-related
payments, any expenses involved in any tax examination, audit or proceeding, and
the expense of any tax-related Opinion of Counsel or other professional advice
requested by the Trustee for the benefit or protection of the
Certificateholders.
Section 10.02 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee
(a) The Depositor shall provide or cause to be provided to the
Trustee, within 10 days after the Closing Date, all information or data that the
Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including the price, yield,
prepayment assumption and projected cash flow of the Certificates.
(b) The Master Servicer and the Special Servicer shall furnish
such reports, certifications and information in its possession, and access to
such books and records maintained thereby, as may relate to the Certificates or
the Trust Fund and as shall be reasonably requested by the Trustee in order to
enable it to perform its duties under this Article X.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any B Loan Holder, (i) to cure any ambiguity, (ii) to
correct, modify or supplement any provision herein which may be inconsistent
with any other provision herein or to correct any error, (iii) to make any other
provisions with respect to matters or questions arising hereunder which shall
not be inconsistent with the then existing provisions hereof, (iv) as evidenced
by an Opinion of Counsel delivered to the Trustee, the Master Servicer and the
Special Servicer, to relax or eliminate (A) 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 (B) any transfer
restriction imposed on the Certificates pursuant to Section 5.02(b) or Section
5.02(c) (if applicable law is amended or clarified such that any such
restriction may be relaxed or eliminated), (v) as evidenced by an Opinion of
Counsel delivered to the Trustee, either (X) 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 either
Trust REMIC or the Grantor Trust at least from the effective date of such
amendment, or (Y) 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 either Trust REMIC or the Grantor Trust or (Z) to
comply with any requirements imposed by the Commission with respect to any
proposed or adopted temporary or final regulation or other written official
announcement or interpretation relating to the securities laws which, would
apply retroactively to the Depositor, any Underwriter or the Trust Fund, (vi)
subject to Section 5.02(d)(iv), to modify, add to or eliminate any of the
provisions of Section 5.02(d)(i), (ii) or (iii), or (vii) to avoid an Adverse
Rating Event with respect to any Class of Rated Certificates; provided that no
such amendment may significantly change the activities of the Trust; and
provided, further, that any such amendment for the specific purposes described
in clause (iii) or (vii) above shall not adversely affect in any material
respect the interests of any Certificateholder or any third-party beneficiary to
this Agreement or any provision hereof, as evidenced by the Trustee's receipt of
an Opinion of Counsel to that effect (or, alternatively, in the case of a Class
of Rated Certificates, written confirmation from each applicable Rating Agency
to the effect that such amendment shall not result in an Adverse Rating Event
with respect to any Class of Rated Certificates); and provided, further, that
with respect to any such amendment for the specific purposes described in clause
(iii) above, the Trustee shall receive written confirmation from each applicable
Rating Agency to the effect that such amendment shall not result in an Adverse
Rating Event with respect to any Class of Rated Certificates.
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the Classes that are materially affected by the amendment, 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 received or
advanced on Mortgage Loans and/or REO Properties which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate, or which are required to be distributed to any B Loan Holder,
without the consent of such B Loan Holder, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates or any B Loan
Holder in a manner other than as described in clause (i) above, without the
consent of the Holders of all Certificates of such Class or the consent of such
B Loan Holder, as applicable, (iii) modify the provisions of this Section 11.01
or the definition of "Servicing Standard," without the consent of the Holders of
all Certificates then outstanding (and each B Loan Holder if such modification
affects the rights of such B Loan Holder), (iv) adversely affect in any material
respect the interests of any third-party beneficiary to this Agreement or any
provision herein, without the consent of such third-party beneficiary, or (v)
significantly change the activities of the Trust, without the consent of the
Holders of Certificates entitled to no less than 51% of all the Voting Rights
(without regard to Certificates held by the Depositor or any of its 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 the
matters described above as they would if registered in the name of any other
Person.
(c) Notwithstanding any contrary provision of this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer shall consent to any
amendment to this Agreement unless it shall first have obtained or been
furnished with an Opinion of Counsel to the effect that neither such amendment
nor the exercise of any power granted to any party hereto in accordance with
such amendment will result in an Adverse REMIC Event with respect to either
Trust REMIC or an Adverse Grantor Trust Event with respect to the Grantor Trust,
the cost of which Opinion of Counsel shall be at the expense of the Trust Fund,
in the case of any amendment requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the interests of the
Certificateholders, and otherwise borne by the party requesting such amendment.
(d) Promptly after the execution and delivery of any amendment by
all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder, each B Loan Holder and to each Rating Agency.
(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, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) 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.
(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 Trustee requests any amendment of this Agreement
that it reasonably believes 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 Distribution Account.
(h) Notwithstanding the foregoing, absent a material adverse
effect on any Certificateholder, this Agreement may be amended by the parties
hereto without the consent of any of the Certificateholders to the extent
necessary for any Mortgage Loan Seller and their Affiliates to obtain accounting
"sale" treatment for the Mortgage Loans under FAS 140. 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 Depositor on direction by
the Trustee, but only upon direction accompanied by an Opinion of Counsel (the
cost of which shall be paid by the Depositor or, to the extent that it benefits
any B Loan Holder, by such B Loan Holder) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders
and/or the B Loan Holders. (b) 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 and B
Loan Holders
(a) The death or incapacity of any Certificateholder or B Loan
Holder shall not operate to terminate this Agreement or the Trust, nor entitle
such Certificateholder's or such B Loan Holder'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, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder or B Loan Holder shall have any right to
vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of the Trust Fund, or the obligations of
the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders or B Loan Holders from time to time as partners or members of
an association; nor shall any Certificateholder or B Loan Holder 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 or B Loan Holder 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 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. The Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it hereunder or to institute,
conduct or defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Holders of Certificates unless such Holders
have offered to the Trustee reasonable security against the costs, expenses and
liabilities which may be incurred therein or hereby.
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 any other Holders of 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 11.03, 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 substantive laws of the State of New York applicable to
agreements 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. The parties hereto intend that the provisions of Section 5-1401
of the New York General Obligations Law shall apply to this Agreement.
Section 11.05 Notices
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, Credit Suisse
First Boston Mortgage Securities Corp., Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx XxXxxxxxxx, Esq.,
Compliance Department, telecopy number: (000) 000-0000; (ii) in the case of the
Underwriter and the Initial Purchaser, Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with
a copy to Xxxxx XxXxxxxxxx, Esq., Compliance Department, telecopy number: (212)
325-8282; (iii) in the case of the Master Servicer and the Special Servicer,
Midland Loan Services, Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx
00000 (for deliveries), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000
(for communications by United States mail), Attention: President, telecopy
number: (000) 000-0000, with a copy to Dechert LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxx, telecopy number: (212)
698-3599; (iv) if sent to PNC Capital Markets LLC, shall be mailed, delivered or
telecopied to it at One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxx Xxxxxx, telecopy number: (000) 000-0000, with a copy to
Xxxxxxx Xxxxxxxx, telecopy number: (000) 000-0000; (v) in the case of the
Trustee, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Services (CMBS) - Credit Suisse First
Boston Series 2006-C3; (vi) in the case of the CSFB Mortgage Loan Seller, Column
Financial, Inc., 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000,
Attention: President, telecopy number: (000) 000-0000; (vii) in the case of the
PNC Mortgage Loan Seller, PNC Bank, National Association, 00000 Xxxxxx, Xxxxx
000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries), and X.X. Xxx 00000, Xxxxxxx
Xxxxxxx, Xxxxxx 00000-0000 (for communications by United States mail),
Attention: Xxxxx Xxxx, telecopy number: (000) 000-0000, with a copy to PNC Bank,
National Association, One PNC Plaza, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx Xxxxx, telecopy number: (412)
762-4334; (vii) in the case of the Rating Agencies, (A) Xxxxx'x Investors
Service Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial
MBS Monitoring Department, telecopy number (000) 000-0000, and (B) Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance Department,
telecopy number: (000) 000-0000; (viii) in the case of any Mortgage Loan Seller,
the address for notices to such Mortgage Loan Seller under the related Mortgage
Loan Purchase Agreement; (ix) in the case of the Column Performance Guarantor,
the address for notices to the Column Performance Guarantor under the Column
Performance Guarantee; (x) in the case of the initial the B Loan Holder as
specified in the A/B Intercreditor Agreement, Column Financial, Inc., 0000
Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxx
X. Xxxxxx, telecopy number (000) 000-0000 and (xi) in the case of the initial
Controlling Class Representative, Anthracite, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxx Xxxxxx, telecopy number: (000) 000-0000; or as to
each such Person such other address and/or telecopy number 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 covenant(s), agreement(s), provision(s) or term(s) 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 Successors and Assigns; Beneficiaries
The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto, their respective successors and assigns
and all such provisions shall inure to the benefit of the Certificateholders.
The B Loan Holders are each an intended third-party beneficiary in respect of
the rights afforded it hereunder. No other person, including, without
limitation, any Borrower, shall be entitled to any benefit or equitable right,
remedy or claim under this Agreement.
Section 11.08 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.
Section 11.09 Notices to and from the Rating Agencies and the
Depositor
(a) The Trustee shall use reasonable efforts to promptly provide
notice to each Rating Agency and the Depositor with respect to each of the
following of which a Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement; (ii) the
occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Master Servicer or the
Special Servicer and the appointment of a successor;
(iv) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(v) any repurchase or substitution of a Mortgage Loan by a
Mortgage Loan Seller or the Column Performance Guarantor, as contemplated
by Section 2.03; and
(vi) the final payment to any Class of Certificateholders (or, in
the case of S&P, on all the Certificates).
(b) The Master Servicer shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which
it has actual knowledge: (i) the resignation or removal of the Trustee and the
appointment of a successor; and (ii) any change in the location of the
Collection Account.
(c) The Master Servicer and the Special Servicer, as the case may
be, shall furnish each Rating Agency such information with respect to the
Mortgage Loans as such Rating Agency shall reasonably request and which such
Master Servicer or such Special Servicer, as the case may be, can reasonably
provide to the extent consistent with applicable law and the related Mortgage
Loan Documents. In any event, the Master Servicer and the Special Servicer shall
notify each Rating Agency with respect to each of the following with respect to
the Mortgage Loans for which it acts as Master Servicer or Special Servicer of
which it has actual knowledge:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a
tenant representing more than 20% of the total net rentable square feet
of space) at any Mortgaged Property used for retail pur poses or any
change in the term of the lease for an anchor tenant at any such
Mortgaged Property;
(iii) any assumption of, or release or substitution of collateral
for, a Mortgage Loan that represents greater than 2% of the then
aggregate Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of a Mortgage Loan or material damage to a
Mortgaged Property;
(v) any change in a franchise held by the related Borrower;
(vi) any loan subject to bankruptcy proceedings; and
(vii) any release of a Letter of Credit or debt service reserve
with respect to any Mortgage Loan.
(d) The Trustee shall promptly after each Distribution Date make
available to each Rating Agency a copy of the related Trustee Report.
(e) The Master Servicer and the Special Servicer, as the case may
be, shall promptly furnish (in hard copy format or through use of the Master
Servicer's Internet Website), to each Rating Agency copies of the following
items (in each case, at or about the same time that it delivers or causes the
delivery of such item to the Trustee):
(i) each of its annual compliance statements and reports pursuant
to Section 12.11 and Section 12.12;
(ii) each of its annual accountants' reports pursuant to Section
12.13; and
(iii) each report prepared pursuant to Section 3.09(e).
(f) The parties intend that each Rating Agency provide to the
Trustee, upon request, a listing of the then-current rating (if any) assigned by
such Rating Agency to each Class of Certificates then outstanding.
Section 11.10 Notices to Controlling Class Representative
The Trustee, the Master Servicer or the Special Servicer, as the
case may be, shall deliver to the Controlling Class Representative a copy of
each notice or other item of information such Person is required to deliver to
the Rating Agencies pursuant to Section 11.09, in each case simultaneously with
the delivery thereof to the Rating Agencies, to the extent not already delivered
pursuant to this Agreement.
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.
ARTICLE XII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 12.01 Intent of the Parties; Reasonableness
Except with respect to Section 12.11, Section 12.12 and Section
12.13, the parties hereto acknowledge and agree that the purpose of Article XII
of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
The Depositor shall not exercise its rights to request delivery of information
or other performance under these provisions other than reasonably and in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder. The parties hereto acknowledge that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agree to comply with requests made by the Depositor
in good faith for delivery of information under these provisions on the basis of
evolving interpretations of the requirements of Regulation AB. In connection
with the Certificates, each of the parties to this Agreement shall cooperate
fully with the reasonable request of the Depositor to deliver or make available
to the Depositor (including any of their assignees or designees), any and all
statements, reports, certifications, records and any other information in the
applicable Person's possession and necessary in the good faith determination of
the Depositor to permit the Depositor to comply with the provisions of
Regulation AB, together with such disclosures relating to the Master Servicer,
the Special Servicer, any Servicing Function Participant and the Trustee, as
applicable, or the Servicing of the Mortgage Loans, reasonably believed by the
Depositor to be necessary in order to effect such compliance. For the avoidance
of doubt, none of the Master Servicer, the Special Servicer or any Servicing
Function Participant is responsible to make filings with the Commission.
Section 12.02 Reserved
Section 12.03 Information to be Provided by the Master Servicer,
the Special Servicer, the Trustee and each
Servicing Function Participant
For so long as the Trust is subject to the reporting requirements
of the Exchange Act with respect to the Certificates, in connection with the
succession to the Master Servicer, the Special Servicer, any Servicing Function
Participant or the Trustee as a servicer or trustee under this Agreement by any
Person (i) into which such Master Servicer, such Special Servicer, such
Servicing Function Participant or the Trustee may be merged or consolidated, or
(ii) which may be appointed as a successor to such Master Servicer, such Special
Servicer, any Servicing Function Participant or the Trustee, such successor
Person shall provide to the Depositor, at least 5 calendar days prior to the
effective date of such succession or appointment (as long as such disclosure
prior to such effective date would not be violative of any applicable law or
confidentiality agreement, otherwise immediately following such effective date,
but no later than required pursuant to Section 12.09), (x) written notice to the
Trustee and the Depositor of such succession or appointment and (y) in writing
and in form and substance reasonably satisfactory to the Trustee and the
Depositor, all information relating to such successor reasonably requested by
the Depositor in order to comply with its reporting obligation under Item 6.02
of Form 8-K with respect to any Class of Certificates.
Section 12.04 Reserved
Section 12.05 Filing Obligations
The Master Servicer, the Special Servicer and the Trustee shall,
and the Master Servicer and the Special Servicer, as applicable, shall use
commercially reasonable efforts to cause each Servicing Function Participant
(other than any party to this Agreement and any Sub-Servicer listed on Exhibit L
hereto) with which it has entered into a servicing relationship with respect to
the Mortgage Loans to, reasonably cooperate with the Trustee and the Depositor
in connection with the Trustee's and Depositor's good faith efforts to satisfy
the Trust's reporting requirements under the Exchange Act.
Section 12.06 Form 10-D Filings
Within 15 days after each Distribution Date (subject to permitted
extensions under the Exchange Act), the Trustee shall prepare and file on behalf
of the Trust any Form 10-D required by the Exchange Act and the rules and
regulations of the Commission thereunder in form and substance as required by
the Exchange Act and the rules and regulations of the Commission thereunder. The
Trustee shall file each Form 10-D, pursuant to the paragraph immediately
succeeding, with a copy of the related Statement to Certificateholders attached
thereto. Any disclosure in addition to the Statement to Certificateholders that
is required to be included on Form 10-D ("Additional Form 10-D Disclosure")
shall, pursuant to the paragraph immediately succeeding, (and to the extent not
otherwise reported pursuant to any other provision of this Agreement) be
reported by the parties set forth on Exhibit V and approved or disapproved, as
the case may be, as to form and substance, by the Depositor. The Trustee shall
have no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure (other than such Additional Form 10-D Disclosure
which is to be reported by it as set forth on Exhibit V), absent such reporting
and approval.
For so long as the Trust is subject to the reporting requirements
of the Exchange Act, within 5 calendar days after the related Distribution Date,
(i) each party listed on Exhibit V hereto shall be required to provide to the
Trustee and the Depositor, to the extent a Servicing Officer or Responsible
Officer, as the case may be, thereof has actual knowledge (other than Item 1117
of Regulation AB as to such party which shall be reported if actually known by
any Servicing Officer or Responsible Officer, as the case may be, any lawyer in
the in-house legal department or a senior manager of such party), in
XXXXX-compatible format, or in such other format as otherwise agreed upon by the
Trustee, the Depositor and such party, any Additional Form 10-D Disclosure
described on Exhibit V applicable to such party, (ii) include with such
Additional Form 10-D Disclosure, an Additional Disclosure Notification
substantially in the form attached hereto as Exhibit Y and (iii) the Trustee
shall, at any time prior to filing the related Form 10-D, provide prompt notice
to the Depositor to the extent that the Trustee is notified of an event
reportable on Form 10-D for which it has not received the necessary Additional
Form 10-D Disclosure from the applicable party. No later than the 5th calendar
day after the Distribution Date, the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Trustee has no duty under this Agreement
to monitor or enforce the performance by the parties listed on Exhibit V of
their duties under this paragraph or proactively solicit or procure from such
parties any Additional Form 10-D Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Trustee in connection with including any Additional Form 10-D Disclosure on Form
10-D pursuant to this paragraph.
After preparing the Form 10-D, the Trustee shall forward
electronically a draft copy of the Form 10-D to the Depositor for review and
approval; provided that the Trustee shall use its reasonable best efforts to
provide such copy to the Depositor by the 3rd calendar day prior to the 15th
calendar day after the related Distribution Date, but in no event earlier than
24 hours after receipt of direction from the Depositor regarding the inclusion
of any Additional Form 10-D Disclosure pursuant to the preceding paragraph.
Within two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date, the Depositor shall notify the Trustee
in writing (which may be furnished electronically) of any changes to or approval
of such Form 10-D and, a duly authorized representative of the Depositor shall
sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days". The Depositor hereby
instructs the Trustee, with respect to each Form 10-D, to check "yes" for each
item unless the Trustee has received timely prior written notice from the
Depositor that the answer should be "no" for an item. The Trustee shall file
such Form 10-D, upon signature thereof as provided in Section 12.16, not later
than (i) 5:30 pm (New York City time) on the 15th calendar day after the related
Distribution Date or (ii) such other time as the Depositor and the Trustee
mutually agree is permitted by the Commission for the filing such Form 10-D. If
a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to
be amended, the Trustee will follow the procedures set forth in Section
12.10(b). Promptly, but no later than one Business Day after filing with the
Commission, the Trustee shall, pursuant to Section 4.02(c), make available on
its internet website a final executed copy of each Form 10-D prepared and filed
by the Trustee. The parties to this Agreement acknowledge that the performance
by the Trustee of its duties under this Section 12.06 related to the timely
preparation and filing of Form 10-D is contingent upon such parties observing
all applicable deadlines in the performance of their duties under this Section
12.06. The Trustee shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or file such Form 10-D where such failure results from the
Trustee's inability or failure to receive on a timely basis any information from
any other party hereto needed to prepare, arrange for execution or file such
Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct.
Section 12.07 Form 10-K Filings
Within 90 days after the end of each fiscal year of the Trust or
such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline") (it being understood that the fiscal year for the Trust ends on
December 31st of each year), commencing in March 2007, the Trustee shall prepare
and file on behalf of the Trust a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items, in
each case to the extent they have been delivered to the Trustee within the
applicable time frames set forth in this Agreement, (i) an annual compliance
statement for each applicable Reporting Servicer, as described under Section
12.11, (ii)(A) the annual reports on assessment of compliance with servicing
criteria for each applicable Reporting Servicer, as described under Section
12.12, and (B) if any Reporting Servicer's report on assessment of compliance
with servicing criteria described under Section 12.12 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer's report on assessment of compliance
with servicing criteria described under Section 12.12 is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation as to why such report is not included, (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer, as
described under Section 12.13, and (B) if any registered public accounting firm
attestation report described under Section 12.13 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation as to why such report is not included,
and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 12.08. Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K ("Additional Form 10-K Disclosure") shall, pursuant
to the paragraph immediately succeeding, be reported by the parties set forth on
Exhibit W and approved or disapproved, as the case may be, as to form and
substance, by the Depositor, and the Trustee will have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-K
Disclosure absent such reporting or approval. However, where information from
such other party for inclusion in a Form 10-K is not received on a timely basis,
but is subsequently provided within a time period that may allow for the timely
filing of the applicable Form 10-K or an amendment thereto, then the Trustee
shall use reasonable efforts to properly prepare, arrange for execution and file
such Form 10-K or amendment thereto.
For so long as (but only for so long as) the Trust is subject to
the reporting requirements of the Exchange Act, no later than March 15,
commencing in March 2007 (i) each party listed on Exhibit W hereto shall be
required to provide to the Trustee and the Depositor, to the extent a Servicing
Officer or a Responsible Officer, as the case may be, thereof has actual
knowledge (other than with respect to disclosure required pursuant to Items 1117
and 1119 of Regulation AB as to such party which shall be reported if actually
known by any Servicing Officer, any lawyer in the in-house legal department or a
senior manager of such party), in XXXXX-compatible format, or in such other form
as otherwise agreed upon by the Trustee, the Depositor and such party, any
Additional Form 10-K Disclosure described on Exhibit W applicable to such party,
(ii) include with such Additional Form 10-K Disclosure, an Additional Disclosure
Notification substantially in the form attached hereto as Exhibit Y and (iii)
the Trustee shall, at any time prior to filing the related Form 10-K, provide
prompt notice to the Depositor to the extent that the Trustee is notified of an
event reportable on Form 10-K for which it has not received the necessary
Additional Form 10-K Disclosure from the applicable party. No later than March
15th, the Depositor will approve, as to form and substance, or disapprove, as
the case may be, the inclusion of the Additional Form 10-K Disclosure on Form
10-K. Other than with respect to itself, the Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
W of their duties under this paragraph or proactively solicit or procure from
such parties any Additional Form 10-K Disclosure information. The Depositor will
be responsible for any reasonable fees and expenses assessed or incurred by the
Trustee in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph.
After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review. Within three
Business Days after receipt of such copy, but no later than March 25th, the
Depositor shall notify the Trustee in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-K. No later than
5:00 p.m. EST on the 4th Business Day prior to the 10-K Filing Deadline, a
senior officer in charge of securitization of the Depositor shall sign the Form
10-K and return an electronic or fax copy of such signed Form 10-K (with an
original executed hard copy to follow by overnight mail) to the Trustee. If a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Trustee will follow the procedures set forth in Section 12.10(b).
After filing with the Commission, the Trustee shall, pursuant to Section
4.02(c), make available on its internet website a final executed copy of each
Form 10-K filed by the Trustee. The parties to this Agreement acknowledge that
the performance by the Trustee of its duties under this Section 12.07 related to
the timely preparation and filing of Form 10-K is contingent upon such parties
(and any Additional Servicer or Servicing Function Participant) observing all
applicable deadlines in the performance of their duties under this Article XII.
The Trustee shall have no liability with respect to any failure to properly
prepare and/or file such Form 10-K resulting from the Trustee's inability or
failure to receive from any other party any information needed to prepare,
arrange for execution or file such Form 10-K on a timely basis, not resulting
from its own negligence, bad faith or willful misconduct.
Section 12.08 Xxxxxxxx-Xxxxx Certification
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") as set forth in Exhibit M-1 attached hereto, required to be
included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting Servicer
shall, and the Master Servicer, the Special Servicer and the Trustee shall use
reasonable efforts to cause each Servicing Function Participant with which it
has entered into a servicing relationship with respect to the Mortgage Loans
(other than any party to this Agreement and any Sub-Servicer listed on Exhibit L
hereto) to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
(the "Certifying Person") by no later than March 15th of each year in which the
Trust is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
"Performance Certification"), in the form attached hereto as Exhibit X-0, X-0 xx
X-0, on which the Certifying Person, the entity for which the Certifying Person
acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. The senior officer in charge of the securitization of the
Depositor shall serve as the Certifying Person on behalf of the Trust. Such
officer of the Certifying Person can be contacted at 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000. If any Reporting Servicer is terminated or resigns pursuant to
the terms of this Agreement, or any applicable sub-servicing agreement or
primary servicing agreement, as the case may be, such Reporting Servicer shall
provide a certification to the Certifying Person pursuant to this Section 12.08
with respect to the period of time it was subject to this Agreement or the
applicable sub-servicing or primary servicing agreement, as the case may be.
Notwithstanding the foregoing, nothing in this paragraph shall require any
Reporting Servicer (i) to certify or verify the accurateness or completeness of
any information provided to such Reporting Servicer by third parties, (ii) to
certify information other than to such Reporting Servicer's knowledge and in
accordance with such Reporting Servicer's responsibilities hereunder or (iii)
with respect to completeness of information and reports, to certify anything
other than that all fields of information called for in written reports prepared
by such Reporting Servicer have been completed except as they have been left
blank on their face.
Each Performance Certification shall include a reasonable reliance
statement by the Reporting Servicer enabling the Certification Parties to rely
upon each (i) annual compliance statement provided by such Reporting Servicer
pursuant to Section 12.11, (ii) annual report on assessment of compliance with
servicing criteria provided by such Reporting Servicer pursuant to Section 12.12
and (iii) registered public accounting firm attestation report provided by such
Reporting Servicer pursuant to Section 12.13.
Section 12.09 Form 8-K Filings
Within four (4) Business Days after the occurrence of an event
requiring disclosure under Form 8-K (each a "Reportable Event"), and, if
requested by the Depositor and to the extent it receives the Form 8-K Disclosure
Information described below, the Trustee shall prepare and file on behalf of the
Trust any Form 8-K as required by the Exchange Act provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure
Information") shall, pursuant to the paragraph immediately succeeding, be
reported by the parties set forth on Exhibit X and approved or disapproved, as
the case may be, by the Depositor and the Trustee shall have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information (other than such Form 8-K Disclosure Information which is
to be reported by it as set forth on Exhibit X) absent such reporting and
approval.
For so long as (but only for so long as) the Trust is subject to
the reporting requirements of the Exchange Act, (i) the parties listed on
Exhibit X hereto shall, to the extent a Servicing Officer or a Responsible
Officer, as the case may be, thereof has actual knowledge (or any officer
thereof with respect to Items 1117 and 1119 or Regulation AB as to such party),
use their reasonable efforts to provide to the Depositor and the Trustee within
1 Business Day after the occurrence of the Reportable Event, but shall provide
in no event later than noon (New York City time) on the 2nd Business Day after
the occurrence of the Reportable Event, any Form 8-K Disclosure Information
described on Exhibit X as applicable to such party, in XXXXX-compatible format,
or in such other format as otherwise agreed upon by the Trustee, the Depositor
and such party, and (ii) include with such Additional Form 8-K Disclosure, an
Additional Disclosure Notification substantially in the form attached hereto as
Exhibit Y. The Depositor will approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Form 8-K Disclosure Information on Form
8-K no later than 6 p.m. on the second business Day after the Reportable Event.
The Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit X of their duties under this
paragraph or proactively solicit or procure from such parties any Form 8-K
Disclosure Information. Any notice delivered to the Trustee pursuant to this
paragraph shall be delivered by facsimile to (000) 000-0000 and by email to
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other address as may hereafter be
furnished by the Trustee to such other parties in writing. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Trustee in connection with including any Form 8-K Disclosure Information on Form
8-K pursuant to this paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review. Promptly, but
no later than the close of business on the third Business Day after the
Reportable Event, the Depositor shall notify the Trustee in writing (which may
be furnished electronically) of any changes to or approval of such Form 8-K. No
later than noon (Eastern time) on the 4th Business Day after the Reportable
Event, a duly authorized representative of the Depositor shall sign the Form 8-K
and return an electronic or fax copy of such signed Form 8-K (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 8-K
cannot be filed on time or if a previously filed Form 8-K needs to be amended,
the Trustee will follow the procedures set forth in Section 12.10(b). After
filing with the Commission, the Trustee will, pursuant to Section 4.02(c), make
available on its internet website a final executed copy of each Form 8-K filed
by the Trustee. The parties to this Agreement acknowledge that the performance
by the Trustee of its duties under this Section 12.09 related to the timely
preparation and filing of Form 8-K is contingent upon such parties observing all
applicable deadlines in the performance of their duties under this Section
12.09. The Trustee shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 8-K, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K and not
resulting from the Trustee's own negligence, bad faith or willful misconduct.
Section 12.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports
(a) On or before January 30 of the first year in which the Trustee
is able to do so under applicable law, the Trustee shall prepare and file a Form
15 Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act, and shall provide notice to the
other parties hereto in the event such filing is not accomplished. After the
filing of Form 15, the obligations of the parties to this Agreement under
Sections 12.01, 12.03, 12.05, 12.06, 12.07, 12.08 and 12.09 shall be suspended.
(b) The Trustee shall promptly notify (which notice,
notwithstanding the provisions of Section 10.05, may be sent by facsimile or by
email and which shall include the identity of the Master Servicer or Special
Servicer who did not deliver such information) the Depositor and the Depositor
shall notify each Master Servicer or Special Servicer that failed to deliver
such information, if all, or any portion of, any required disclosure information
to be included in any Form 8-K, Form 10-D or Form 10-K required to be filed
pursuant to this Agreement is not delivered to it within the delivery deadlines
set forth in this Agreement (exclusive of any grace or cure periods), but only
to the extent the Trustee has actual knowledge that the Master Servicer or
Special Servicer, as applicable, is required to provide such disclosure
information. If the Trustee is unable to timely file with the Commission all or
any required portion of any Form 8-K, Form 10-D or Form 10-K required to be
filed by this Agreement because required disclosure information was either not
delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement or for any other reason, the Trustee shall promptly notify the
Depositor of such inability to make a timely filing with the Commission. In the
case of Forms 10-D and 10-K, the parties hereto, as necessary, shall cooperate
with the Depositor and the Trustee to prepare and file a Form 12b-25 and a Form
10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Trustee shall, upon receipt of all required
Form 8-K Disclosure Information and upon the approval and direction of the
Depositor, include such disclosure information on the next Form 10-D. In the
event that any previously filed Form 8-K, Form 10-D or Form 10-K needs to be
amended, the Trustee will, in the case of any such amended forms relating to
Additional Form 10-D Disclosure or to Additional Form 10-K Disclosure, notify
the Depositor, and the Depositor shall notify the Master Servicer or Special
Servicer and such parties shall cooperate (only to the extent information
regarding, or an action of, such party is any part of the reason for such
amendment) to prepare any necessary 8-K/A, Form 10-D/A or Form 10-K/A. Any Form
15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be
signed, in the case of Form 15, Form 12b-25 or any amendments to Form 8-K or
Form 10-D, by a duly authorized officer of the Depositor, and in the case of
Form 10-K, by a senior officer of the Depositor in charge of securitization. The
Depositor, the Master Servicer and the Special Servicer acknowledge that the
performance by the Trustee of its duties under this Section 12.10 related to the
timely preparation and filing of Form 15, a Form 12b-25 or any amendment to Form
8-K, Form 10-D or Form 10-K is contingent upon the Master Servicer, the
Depositor and the Special Servicer performing their duties under this Section.
The Trustee shall have no liability for any loss, expense, damage, claim arising
out of or with respect to any failure to properly prepare and/or timely file any
such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where
such failure results from the Trustee's inability or failure to receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or timely file such Form 15, Form 12b-25 or any amendments
to Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
Section 12.11 Annual Compliance Statements
The Master Servicer, the Special Servicer, the Trustee and each
Servicing Function Participant (if such Servicing Function Participant is a
servicer contemplated by Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB)
(each a "Certifying Servicer") shall, and the Master Servicer, the Special
Servicer and the Trustee shall use commercially reasonable efforts to cause each
Additional Servicer and each Servicing Function Participant (if such Servicing
Function Participant is a servicer contemplated by Item 1108(a)(2)(i), (ii) or
(iii) of Regulation AB) with which it has entered into a servicing relationship
with respect to the Mortgage Loans (other than any party to this Agreement and
any Sub-Servicer listed on Exhibit L hereto) to, deliver to the Depositor and
the Trustee on or before March 15th of each year, commencing in March 2007, an
Officer's Certificate stating, as to the signer thereof, that (A) a review of
such Certifying Servicer's activities during the preceding fiscal year or
portion thereof and of such Certifying Servicer's performance under this
Agreement (or the applicable sub-servicing agreement, as the case may be), has
been made under such officer's supervision and (B) to the best of such officer's
knowledge, based on such review, such Certifying Servicer has fulfilled all its
obligations under this Agreement, or the applicable sub-servicing agreement or
primary servicing agreement in the case of an Additional Servicer, in all
material respects throughout such year or portion thereof, or, if there has been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof. Each
Certifying Servicer shall forward a copy of each such statement to the
Controlling Class Certificateholder. Promptly after receipt of each such
Officer's Certificate, the Depositor shall have the right to review such
Officer's Certificate and, if applicable, consult with each Certifying Servicer,
as applicable, as to the nature of any failures by such Certifying Servicer in
the fulfillment of any of the Certifying Servicer's obligations hereunder or
under the applicable sub-servicing agreement. None of the Certifying Servicers
or any Additional Servicer or Servicing Function Participant shall be required
to deliver, or to endeavor to cause the delivery of any such Officer's
Certificates until April 30 in any given year, so long as a Form 10-K is not
required to be filed in respect of the Trust for the preceding fiscal year.
Section 12.12 Annual Reports on Assessment of Compliance with
Servicing Criteria
By March 15 of each year in which the Trust is required to file a
Form 10-K for the preceding fiscal year, commencing in March 2007, or April 30
of each year in which the Trust is not required to file a Form 10-K for the
preceding fiscal year, the Master Servicer, the Special Servicer (regardless of
whether the Special Servicer has commenced special servicing of any Mortgage
Loan), the Trustee and each Servicing Function Participant, each at its own
expense, shall furnish, and each of the preceding parties, as applicable, shall
use reasonable efforts to cause each other Servicing Function Participant (other
than any party to this Agreement and any Sub-Servicer listed on Exhibit L
hereto) with which it has entered into a servicing relationship with respect to
the Mortgage Loans to furnish, each at its own expense, to the Trustee and the
Depositor, with a copy to the Controlling Class Certificateholder a report on an
assessment of compliance with the Relevant Servicing Criteria for the preceding
fiscal year that contains (A) a statement by such Reporting Servicer of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such Reporting Servicer used the Servicing Criteria to
assess compliance with the Relevant Servicing Criteria, (C) such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria as of
and for the period ending the end of the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 12.07, including, if there has been any
material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such Reporting Servicer's assessment of compliance with the Relevant
Servicing Criteria as of and for such period.
No later than ten (10) Business Days after the end of each fiscal
year for the Trust for which a Form 10-K is required to be filed, the Master
Servicer, the Special Servicer and the Trustee shall each forward to the Trustee
and the Depositor the name and address of each Servicing Function Participant
engaged by it during such fiscal year or portion thereof (except for any
Servicing Function Participant listed on Exhibit K hereto) and what Relevant
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant. When the Master Servicer,
Special Servicer, the Trustee and each Servicing Function Participant submit
their respective assessments to the Trustee and the Depositor, each such party
shall also at such time, if it has received the assessment (and attestation
required pursuant to Section 12.13) of each Servicing Function Participant
engaged by it, include such assessment (and attestation) in its submission to
the Trustee.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Master Servicer, the Special Servicer, the
Trustee and any Servicing Function Participant as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by the Master
Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant, and (ii) the Trustee shall confirm that the assessments, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Exhibit U and notify the Depositor of any exceptions. None of the Master
Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, any such reports until May 1 in any given year that a Form 10-K is not
required to be filed in respect of the Trust for the preceding fiscal year.
The parties hereto acknowledge that a material instance of
noncompliance with the Relevant Servicing Criteria reported on an assessment of
compliance pursuant to this Section 12.12 by the Master Servicer, the Special
Servicer or the Trustee shall not, as a result of being so reported, in and of
itself, constitute a breach of such parties' obligations, as applicable, under
this Agreement unless otherwise provided for in this Agreement.
Section 12.13 Annual Independent Public Accountants' Attestation
By March 15 of each year in which the Trust is required to file a
Form 10-K for the preceding fiscal year, commencing in March 2007, or April 30
of each year in which the Trust is not required to file a Form 10-K for the
preceding fiscal year, the Master Servicer, the Special Servicer and the
Trustee, each at its own expense, shall use reasonable efforts to cause, and
each of the preceding parties, as applicable, shall use commercially reasonable
efforts to cause each other Servicing Function Participant with which it has
entered into a servicing relationship with respect to the Mortgage Loans (other
than any party to this Agreement and any Sub-Servicer listed on Exhibit L
hereto) to cause, each at its own expense, a registered public accounting firm
(which may also render other services to the Master Servicer, the Special
Servicer, the Trustee or such other Servicing Function Participant, as the case
may be) that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Trustee and the Depositor with a copy to
the Controlling Class Certificateholder for the preceding fiscal year, to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such Reporting Servicer, which includes an assessment from
such Reporting Servicer of its compliance with the Relevant Servicing Criteria
and (ii) on the basis of an examination conducted by such firm in accordance
with standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such Reporting Servicer's compliance with
the Relevant Servicing Criteria was fairly stated in all material respects, or
it cannot express an overall opinion regarding such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria. If an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer,
Special Servicer, the Trustee or any Servicing Function Participant with which
it has entered into a servicing relationship with respect to the Mortgage Loans
(other than any party to this Agreement and any Sub-Servicer listed on Exhibit L
hereto), (i) the Depositor shall have the right to review the report and, if
applicable, consult with the Master Servicer, the Special Servicer, the Trustee
or any such Servicing Function Participant as to the nature of any material
instance of noncompliance by such Master Servicer, the Special Servicer, the
Trustee or any such Servicing Function Participant with the Relevant Servicing
Criteria, as the case may be, in the fulfillment of any of the Master
Servicer's, the Special Servicer's, the Trustee's or the applicable Servicing
Function Participant's obligations hereunder or under any applicable
sub-servicing agreement, and (ii) the Trustee shall confirm that each assessment
submitted pursuant to Section 12.12 is coupled with an attestation meeting the
requirements of this Section and notify the Depositor of any exceptions. None of
the Master Servicer, the Special Servicer, the Trustee nor any Servicing
Function Participant shall be required to deliver, or to endeavor to cause the
delivery of, such reports until April 30 in any given year so long as a Form
10-K is not required to be filed in respect of the Trust for the preceding
fiscal year.
Section 12.14 Exchange Act Reporting Indemnification
Each of the Master Servicer, the Special Servicer and the Trustee
shall indemnify and hold harmless each other and each Certification Party, the
Depositor and their respective directors and officers, and each other person who
controls any such entity within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and expenses and
related costs, judgments and other costs and expenses incurred by such
Certification Party arising out of (i) an actual breach of its obligations under
this Article XII or (ii) negligence, bad faith or willful misconduct on its part
in the performance of such obligations.
The Master Servicer, the Special Servicer and the Trustee shall
use commercially reasonable efforts to cause each Servicing Function Participant
with which, in each case, it has entered into a servicing relationship with
respect to the Mortgage Loans (other than any party to this Agreement and any
Sub-Servicer listed on Exhibit L hereto) to indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and expenses and related costs, judgments and
other costs and expenses incurred by such Certification Party arising out of (i)
a breach of its obligations to provide any of the annual compliance statements
or annual assessment of servicing criteria or attestation reports pursuant to
this Agreement, or the applicable sub-servicing or primary servicing agreement,
as applicable, or (ii) negligence, bad faith or willful misconduct on its part
in the performance of such obligations thereunder.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
Special Servicer, Additional Servicer or other Servicing Function Participant
(the "Performing Party") shall contribute, as applicable, to the amount paid or
payable to the Certification Party as a result of the losses, claims, damages or
liabilities of the Certification Party in such proportion as is appropriate to
reflect the relative fault of the Certification Party on the one hand and the
Performing Party on the other in connection with a breach of the Performing
Party's obligations pursuant to this Article XII (or breach of its
representations or obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports) or the Performing
party's negligence, bad faith or willful misconduct in connection therewith. The
Master Servicer, Special Servicer and the Trustee shall use reasonable efforts
to cause each Servicing Function Participant with which it has entered into a
servicing relationship (other than any party to this Agreement and any
Sub-Servicer listed on Exhibit L hereto) with respect to the Mortgage Loans to
agree to the foregoing indemnification and contribution obligations.
Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify in
writing the indemnifying party of the commencement thereof; but the omission to
so notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party under this Agreement except to the extent
that such omission to notify materially prejudices the indemnifying party. In
case any such action is brought against any indemnified party, after the
indemnifying party has been notified of the commencement of such action, such
indemnifying party shall be entitled to participate therein (at its own expense)
and, to the extent that it may wish, shall be entitled to assume the defense
thereof (jointly with any other indemnifying party similarly notified) with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party for any expenses subsequently incurred
in connection with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party fails
within a reasonable period of time to designate counsel that is reasonably
satisfactory to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) in any one jurisdiction separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent.
However, if settled with such consent, the indemnifying party shall indemnify
the indemnified party from and against any loss or liability by reason of such
settlement to the extent that the indemnifying party is otherwise required to do
so under this Agreement. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party (which consent shall not be unreasonably withheld) or, if
such settlement (i) provides for an unconditional release of the indemnified
party in connection with all matters relating to the proceeding that have been
asserted against the indemnified party in such proceeding by the other parties
to such settlement and (ii) does not require an admission of fault by the
indemnified party, without the consent of the indemnified party. Section 12.15
Amendments
Nothing contained in this Article XII shall be construed to require
any party to this Agreement other than the Depositor, or any of such party's
officers, to execute any Form 10-K. The failure of any party to this Agreement
other than the Depositor, or any of such party's officers, to execute any Form
10-K shall not be regarded as a breach by such party of any of its obligations
under this Agreement. This Article XII may be amended by the parties hereto
pursuant to Section 12.01 for purposes of complying with Regulation AB and/or to
conform to standards developed within the commercial mortgage backed securities
market, without any Opinions of Counsel, Officer's Certificates, Rating Agency
Confirmations or the consent of any Certificateholder, notwithstanding anything
to the contrary contained in this Agreement, provided however, no such amendment
shall modify the obligations of Master Servicer or Special Servicer under
Section 11.09(c) hereunder, provided, further, that certificates and reports (or
substantially similar certificates and reports) required to be delivered
pursuant to Section 12.11, Section 12.12 and Section 12.13 will continue to be
required regardless of any such amendment to this Agreement.
Section 12.16 Exchange Act Report Signatures; Delivery of
Notices; Interpretation of Grace Periods
(a) Each Form 8-K report, Form 10-D report and Form 10-K report
shall be signed by the Depositor in accordance with this Agreement and any other
procedures to be agreed upon by the Depositor and the Trustee. The signing party
at the Depositor can be contacted at Credit Suisse First Boston Mortgage
Securities Corp. at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxxxx, with a copy to Xxxxx XxXxxxxxxx, Esq. and the signing party at
the Trustee, if applicable, can be contacted at Xxxxx Fargo Bank, National
Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services (CMBS) Credit Suisse First Boston Mortgage Securities
Corp. 2006-C3.
(b) Notwithstanding anything in Section 10.05 to the contrary, any
notice required to be delivered to the Depositor under this Article XII shall be
properly given if sent by facsimile to (000) 000-0000 Attention: Xxxxxxx Xxxxxxx
(or such other number as the Depositor may instruct) and by email to
Xxxxxxx.xxxxxxx@xxxxxx-xxxxxx.xxx (or such other email address as the Depositor
may instruct).
(c) For the avoidance of doubt:
(i) No Master Servicer or Special Servicer shall be subject to an
Event of Default, as applicable, pursuant to Section 7.01(a)(xi) of this
Agreement nor shall any such party be deemed to not be in compliance
under this Agreement, prior to the date which causes Trustee to be
delinquent in any filing obligation provided for under this Article XII,
provided, that if any such party fails to comply with the delivery
requirements of this Article XII which prevents the Trustee from making
any required filing, such failure shall constitute an Event of Default;
and
(ii) No Master Servicer or Special Servicer shall be subject to an
Event of Default, pursuant to pursuant to Section 7.01(a)(xi) of this
Agreement nor shall any such party be deemed to not be in compliance
under this Agreement, for failing to deliver any item required under this
Article XII by the time required hereunder with respect to any reporting
period for which the Trust is not required to file Exchange Act reports
(which reporting periods will include any occurring after the Trustee
files the Form 15 relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act).
Section 12.17 Termination of the Trustee
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the Trustee if the Trustee
fails to comply with any of its obligations under this Article XII; provided
that (a) such termination shall not be effective until a successor trustee shall
have accepted the appointment, (b) the Trustee may not be terminated if it
cannot perform its obligations due to its failure to properly prepare, arrange
for execution or file on a timely basis any Form 8-K, Form 10-K or Form 10-D or
any amendments to such forms, any Form 15 or any Form 12b-25 where such failure
results from the Trustee's inability or failure to receive, within the exact
time frames set forth in this Agreement any information, approval, direction or
signature from any other party hereto needed to prepare, arrange for execution
or timely file any such Form 8-K, Form 10-K or Form 10-D or any amendments to
such forms or any form 12b-25 not resulting from its own negligence, bad faith
or willful misconduct, (c) the Trustee may not be terminated if, following the
Trustee's failure (which failure is not directly or indirectly caused by the
failure of any other party hereto to perform its obligations fully within the
exact applicable timeframe or otherwise by such party's negligence, bad faith or
willful misconduct) to comply with any of such obligations under Sections 12.06,
12.07, 12.09, 12.11, 12.12 or 12.13 on or prior to the dates by which such
obligations are to be performed pursuant to, and as set forth in, such Sections
the Trustee subsequently complies with such obligations before the Depositor
gives written notice to it that it is terminated in accordance with this Section
12.17 and (d) if the Trustee's failure (which failure is not directly or
indirectly caused by the failure of any other party hereto to perform its
obligations fully within the exact applicable timeframe or otherwise by such
party's negligence, bad faith or willful misconduct) to comply does not cause it
to fail in its obligations to timely file the related Form 8-K, Form 10-D or
Form 10-K, as the case may be, by the related deadline for filing such Form 8-K,
Form 10-D or Form 10-K, then the Depositor shall cease to have the right to
terminate the Trustee under this Section 12.17 on the date on which such Form
8-K, Form 10-D or Form 10-K is so filed.
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.
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
Depositor
By: __________________________________
Name:
Title:
MIDLAND LOAN SERVICES, INC.
Master Servicer and Special Servicer
By: __________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.
Solely in its capacity as Trustee
By: __________________________________
Name:
Title:
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of ______________ 2006, before me, a notary
public in and for said State, personally appeared
_______________________________, personally known to me to be a
______________________________ of CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., 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.
__________________________________
Notary Public
[Notarial Seal]
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of ______________ 2006, before me, a notary
public in and for said State, personally appeared
_______________________________, personally known to me to be a
______________________________ 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.
__________________________________
Notary Public
[Notarial Seal]
STATE OF ___________________)
) ss.:
COUNTY OF _________________ )
On the ______ day of ______________ 2006, before me, a notary
public in and for said State, personally appeared
_______________________________, personally known to me to be a
______________________________ of XXXXX FARGO BANK, N.A., 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.
__________________________________
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS A-X CERTIFICATES
CLASS A-X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2006-C3
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by:
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: Variable Class Notional Amount of the Class
A-X Certificates as of the Closing
Date:
$__________
Closing Date: June 30, 2006 Initial Certificate Notional Amount
of this Certificate as of the
Closing Date:
$__________
First Distribution Date: Aggregate Cut-off Date Principal
July 17, 2006 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,934,069,324
Master Servicer and Special Trustee:
Servicer: Xxxxx Fargo Bank, N.A.
Midland Loan Services,
Inc.
Certificate No. A-X -__ CUSIP No.: ______________
Common Code: ____________
ISIN No.: _______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT.
A TRANSFEREE SHALL ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A AND IT IS A U.S. PERSON WITHIN THE MEANING OF RULE 902 UNDER REGULATION S.
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 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") (EACH A "PLAN"), OR (B) TO 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 A PLAN, 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 CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK, N.A., MIDLAND
LOAN SERVICES, INC., PNC BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS
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 INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[Legend for Regulation S Global Certificate -- PRIOR TO THE DATE THAT IS 40 DAYS
AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND
(B) JUNE 30, 2006, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST 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 amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Class A-X
Certificates (their "Class Notional Amount") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class A-X Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2006
(the "Agreement"), among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor (the "Depositor", which term includes any successors in interest),
Midland Loan Services, Inc., as master servicer (in such capacity, the "Master
Servicer," which term includes any successors in interest), and as special
servicer (in such capacity, the "Special Servicer," which term includes any
successors in interest), and Xxxxx Fargo Bank, N.A. 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, capitalized terms used herein have the respective
meanings assigned thereto 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 its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is fourth business day following the
Determination Date in such month, 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 to all the Holders of the
Class A-X Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Account
and, if established, the REO Account 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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition 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, then (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor or any Affiliate
of the Depositor) 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 F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust 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 this Certificate constitutes a Rule 144A Global Certificate and
a transfer of any interest in this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Certificates or a transfer of any interest therein by
the Depositor, Credit Suisse Securities (USA) LLC ("CSFB") 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 F-2C hereto, 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. Any interest in a Rule
144A Global Certificate shall not be transferred to any Person who takes
delivery other than in the form of an interest in a Rule 144A Global
Certificate. Notwithstanding the preceding two sentences, any interest in a Rule
144A Global Certificate may be transferred (without delivery of any certificate
or Opinion of Counsel described in the second preceding sentence) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate of the
same Class as the Rule 144A Global Certificate, as the case may be, upon
delivery to the Certificate Registrar of (x) a certificate from the Certificate
Owner desiring to effect such transfer substantially in the form attached hereto
as Exhibit F-1D and a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached hereto as Exhibit F-2D and (y)
such written orders and instructions as are required under the applicable
procedures of DTC, Clearstream and Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in the
related Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in the related Regulation S Global
Certificate, that is equal to the denomination of beneficial interests in such
Class to be transferred. Upon delivery to the Certificate Registrar of such
certification and orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of DTC, shall reduce the denomination
of the related Rule 144A Global Certificate, and increase the denomination of
the related Regulation S Global Certificate, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
If this Certificate constitutes a Regulation S Global Certificate,
then beneficial interests in this Certificate shall not be transferred to any
Person who takes delivery other than in the form of a beneficial interest in
this Certificate, and the Certificate Owner desiring to effect such transfer
shall be required to obtain from such Certificate Owner's prospective Transferee
a Regulation S Certificate. On or prior to the Release Date, beneficial
interests in any Regulation S Global Certificate may be held only through
Euroclear or Clearstream. After the Release Date, beneficial interests in any
Regulation S Global Certificate may be held through Euroclear, Clearstream or
any other direct account holder at DTC.
The Rule 144A Global Certificates and the Regulation S Global
Certificates shall be deposited with the Trustee as custodian for DTC and
registered in the name of Cede & Co. as nominee of DTC.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class A-X Certificates 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 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 CSFB, the Depositor,
the Trustee, the Master Servicer, the Special Servicer and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws or the provisions
described in the four preceding paragraphs.
No transfer of this Certificate or any interest herein shall be
made (A) to any retirement plan or other employee benefit plan or 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 Section 4975 of the Code or any essentially similar
provision of applicable federal, state or local law ("Similar Law") (each, a
"Plan"), or (B) to 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 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
Similar Law or would result in the imposition of an excise tax under Section
4975 of the Code or Similar Law. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in 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) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA and Section 4975 of the Code by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60 (or similar
exemption under Similar Law); or (iii) if this Certificate is rated investment
grade by at least one of the Rating Agencies and is being acquired by, on behalf
of or with assets of a Plan in reliance Prohibited Transaction Exemption 89-90,
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, any Exemption-Favored Party, the Master
Servicer, the Special Servicer, any Sub-Servicer or any Borrower with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
of all the Mortgage Loans determined as of the Closing Date, or by an Affiliate
of any such Person, and (Z) agrees that it will obtain from each of its
Transferees a written representation that such Transferee, if a Plan, 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) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee (or, if
applicable, the Certificate Owner effecting the transfer) that such transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or Similar Law or result in the imposition of an excise tax under
Section 4975 of the Code or Similar Law. It is hereby acknowledged that the
forms of certification attached to the Agreement as Exhibit G-1 (in the case of
Definitive Certificates), and Exhibit G-2 (in the case of ownership interests in
Book-Entry Certificates) are acceptable for purposes of the preceding sentence.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account as described above in this
Certificate.
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 this Certificate, 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 this
Certificate.
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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar 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 obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, (ii) the purchase by any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Master Servicer or the
Special Servicer, in that order of preference, at a price determined as provided
in the Agreement, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund and (iii) the acquisition by the Sole Certificateholder(s) of all
the Mortgage Loans and each REO Property remaining in the Trust Fund in exchange
for all of the Certificates. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders to purchase
from the Trust Fund all the Mortgage Loans and each REO Property remaining
therein. The exercise of such right may 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
1.0% of the Initial Pool Balance.
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, the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Special Servicer, the Trustee with the consent of the
Holders of Certificates entitled to not less than 51% of the Voting Rights
allocated to all of the Classes materially affected by the amendment. 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 limited
circumstances, including any amendment necessary to maintain the status of the
Upper-Tier REMIC and the Lower-Tier REMIC 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 Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the 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 Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-X Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
as Certificate Registrar
By:____________________________________
Authorized Representative
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such 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.
EXHIBIT A-2
FORM OF CLASS X-0, XXXXX X-0, CLASS A-AB, CLASS A-3 CLASS A-1-A, CLASS A-M,
CLASS A-J, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES
CLASS [A-1] [A-2] [A-AB] [A-3] [A-1-A] [A-M] [A-J] [B] [C] [D] [E] COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2006-C3
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the
Class [A-1] [A-2] [A-AB] [A-3]
[A-1-A] [A-M] [A-J] [B] [C] [D] [E]
Certificates as of the Closing
Date:
$__________
Closing Date: June 30, 2006 Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
$__________
First Distribution Date: Aggregate Cut-off Date Principal
July 17, 2006 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,934,069,324
Master Servicer and Special Servicer: Trustee:
Midland Loan Services, Inc. Xxxxx Fargo Bank, N.A.
Certificate No. [A-1] [A-2] [A-AB] CUSIP No.: _____________
[A-3] [A-1-A] [A-M] [A-J] [B] [C] Common Code: __________
[D] [E] -___ ISIN No.: _______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK, N.A., MIDLAND
LOAN SERVICES, INC., PNC BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS
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 INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
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 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") (EACH A "PLAN"), OR (B) TO 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 A PLAN, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
[FOR CLASS A-M, CLASS A-J, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES:
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.]
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 amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-1] [A-2]
[A-AB] [A-3] [A-1-A] [A-M] [A-J] [B] [C] [D] [E] Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Class [A-1] [A-2] [A-AB] [A-3]
[A-1-A] [A-M] [A-J] [B] [C] [D] [E] Certificates. The Trust Fund was created and
the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as of June 1, 2006 (the "Agreement"), among Credit Suisse First Boston
Mortgage Securities Corp., as depositor (the "Depositor", which term includes
successors in interest), Midland Loan Services, Inc., as Master Servicer (in
such capacity, the "Master Servicer," which term includes any successors in
interest), and Special Servicer (in such capacity, the "Special Servicer", which
term includes any successors in interest) and Xxxxx Fargo Bank, N.A. 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, capitalized terms used herein have the
respective meanings assigned thereto 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 its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, 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 to all the Holders of the
Class [A-1] [A-2] [A-AB] [A-3] [A-1-A] [A-M] [A-J] [B] [C] [D] [E] Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on this Certificate will be made by the Trustee by wire
transfer of 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 wiring instructions
no later than the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any portion of an Collateral Support Deficit in respect
of this Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
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 Distribution Account, the Collection Account
and, if established, the REO Account 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.
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer of this Certificate or any interest herein shall be
made (A) to any retirement plan or other employee benefit plan or 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 Section 4975 of the Code or any essentially similar
provision of applicable federal, state or local law ("Similar Law") (each, a
"Plan"), or (B) to 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 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
Similar Law or would result in the imposition of an excise tax under Section
4975 of the Code or Similar Law. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in 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) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA and Section 4975 of the Code by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60 (or similar
exemption under Similar Law); or (iii) if this Certificate is rated investment
grade by at least one of the Rating Agencies and is being acquired by, on behalf
of or with assets of a Plan in reliance Prohibited Transaction Exemption 89-90,
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, any Exemption-Favored Party, the Master
Servicer, the Special Servicer, any Sub-Servicer or any Borrower with respect to
Mortgage Loans constituting 5% of the aggregate unamortized principal of all the
Mortgage Loans determined as of the Closing Date, or by an Affiliate of any such
Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, 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) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Certificate Registrar
(or, if applicable, the Certificate Owner effecting the transfer) that such
transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or Similar Law or result in the imposition of an excise
tax under Section 4975 of the Code or Similar Law. It is hereby acknowledged
that the forms of certification attached to the Agreement as Exhibit G-1 (in the
case of Definitive Certificates), and Exhibit G-2 (in the case of ownership
interests in Book-Entry Certificates) are acceptable for purposes of the
preceding sentence.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account as described above in this
Certificate.
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 this Certificate, 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 this
Certificate.
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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar 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 obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, (ii) the purchase by any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Master Servicer or the
Special Servicer, in that order of preference, at a price determined as provided
in the Agreement, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund and (iii) the acquisition by the Sole Certificateholder(s) of all
the Mortgage Loans and each REO Property remaining in the Trust Fund in exchange
for all of the Certificates. The Agreement permits, but does not require, any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all the Mortgage Loans and each REO Property remaining therein.
The exercise of such right may 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 1.0% of the
Initial Pool Balance.
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, the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Special Servicer, the Trustee with the consent of the
Holders of Certificates entitled to not less than 51% of the Voting Rights
allocated to all of the Classes materially affected by the amendment. 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 limited
circumstances, including any amendment necessary to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC 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 Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the 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 Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-AB] [A-3] [A-1-A] [A-M]
[A-J] [B] [C] [D] [E] Certificates referred to in the within-mentioned
Agreement.
Dated:
XXXXX FARGO BANK, N.A.
as Certificate Registrar
By:____________________________________
Authorized Representative
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such 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.
EXHIBIT A-3
FORM OF CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L AND CLASS M
CERTIFICATES
CLASS [F] [G] [H] [J] [K] [L] [M] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-C3
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: ____% per annum Class Principal Balance of the Class
[F] [G] [H] [J] [K] [L] [M]
Certificates as of the Closing Date:
$__________
Closing Date: June 30, 2006 Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
$__________
First Distribution Date: Aggregate Cut-off Date Principal
July 17, 2006 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,934,069,324
Master Servicer and Special Trustee:
Servicer: Xxxxx Fargo Bank, N.A.
Midland Loan Services,
Inc.
Certificate No. [F] [G] [H] [J] [K] CUSIP No.: _____________
[L] [M] Common Code: __________
ISIN No.: _______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT.
A TRANSFEREE SHALL ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A AND IT IS A U.S. PERSON WITHIN THE MEANING OF RULE 902 UNDER REGULATION S.
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 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") (EACH A "PLAN"), OR (B) TO 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 A PLAN, 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 CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK, N.A., MIDLAND
LOAN SERVICES, INC., PNC BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
[Legend for Regulation S Global Certificate -- PRIOR TO THE DATE THAT IS 40 DAYS
AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND
(B) JUNE 30, 2006, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.]
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED 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 amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [F] [G] [H]
[J] [K] [L] [M] Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Class [F] [G] [H] [J] [K] [L] [M] Certificates. The Trust Fund was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Agreement"), among Credit Suisse First
Boston Mortgage Securities Corp., as depositor (the "Depositor", which term
includes successors in interest), Midland Loan Services, Inc., as Master
Servicer (in such capacity, the "Master Servicer," which term includes any
successors in interest), and Special Servicer (in such capacity, the "Special
Servicer", which term includes any successors in interest), and Xxxxx Fargo
Bank, N.A. 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, capitalized terms used
herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, 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 to all the Holders of the
Class [F] [G] [H] [J] [K] [L] [M] Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Trustee by wire transfer of 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 wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of a Collateral Support Deficit in respect of this Certificate) will be made in
like manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Account
and, if established, the REO Account 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.
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition 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, then (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor or any Affiliate
of the Depositor) 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 F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust 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 this Certificate constitutes a Rule 144A Global Certificate and
a transfer of any interest in this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Certificates or a transfer of any interest therein by
the Depositor, Credit Suisse Securities (USA) LLC ("CSFB") 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 F-2C hereto, 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. Any interest in a Rule
144A Global Certificate shall not be transferred to any Person who takes
delivery other than in the form of an interest in a Rule 144A Global
Certificate. Notwithstanding the preceding two sentences, any interest in a Rule
144A Global Certificate may be transferred (without delivery of any certificate
or Opinion of Counsel described in the second preceding sentence) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate of the
same Class as the Rule 144A Global Certificate, as the case may be, upon
delivery to the Certificate Registrar of (x) a certificate from the Certificate
Owner desiring to effect such transfer substantially in the form attached hereto
as Exhibit F-1D and a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached hereto as Exhibit F-2D and (y)
such written orders and instructions as are required under the applicable
procedures of DTC, Clearstream and Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in the
related Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in the related Regulation S Global
Certificate, that is equal to the denomination of beneficial interests in such
Class to be transferred. Upon delivery to the Certificate Registrar of such
certification and orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of DTC, shall reduce the denomination
of the related Rule 144A Global Certificate, and increase the denomination of
the related Regulation S Global Certificate, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
If this Certificate constitutes a Regulation S Global Certificate,
then beneficial interests in this Certificate shall not be transferred to any
Person who takes delivery other than in the form of a beneficial interest in
this Certificate, and the Certificate Owner desiring to effect such transfer
shall be required to obtain from such Certificate Owner's prospective Transferee
a Regulation S Certificate. On or prior to the Release Date, beneficial
interests in any Regulation S Global Certificate may be held only through
Euroclear or Clearstream. After the Release Date, beneficial interests in any
Regulation S Global Certificate may be held through Euroclear, Clearstream or
any other direct account holder at DTC.
The Rule 144A Global Certificates and the Regulation S Global
Certificates shall be deposited with the Trustee as custodian for DTC and
registered in the name of Cede & Co. as nominee of DTC.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class [F] [G] [H] [J] [K] [L] [M]
Certificates 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 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 Depositor, CSFB, the Trustee the Master Servicer, the Special Servicer, and
the Certificate Registrar against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state laws
or the provisions described in the four preceding paragraphs.
No transfer of this Certificate or any interest herein shall be
made (A) to any retirement plan or other employee benefit plan or 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 Section 4975 of the Code or any essentially similar
provision of applicable federal, state or local law ("Similar Law") (each, a
"Plan"), or (B) to 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 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
Similar Law or would result in the imposition of an excise tax under Section
4975 of the Code or Similar Law. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in 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) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA and Section 4975 of the Code by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60 (or similar
exemption under Similar Law); or (iii) if this Certificate is rated investment
grade by at least one of the Rating Agencies and is being acquired by, on behalf
of or with assets of a Plan in reliance Prohibited Transaction Exemption 89-90,
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, any Exemption-Favored Party, the Master
Servicer, the Special Servicer, any Sub-Servicer or any Borrower with respect to
Mortgage Loans constituting 5% of the aggregate unamortized principal of all the
Mortgage Loans determined as of the Closing Date, or by an Affiliate of any such
Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, 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) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Certificate Registrar
(or, if applicable, the Certificate Owner effecting the transfer) that such
transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or Similar Law or result in the imposition of an excise
tax under Section 4975 of the Code or Similar Law. It is hereby acknowledged
that the forms of certification attached to the Agreement as Exhibit G-1 (in the
case of Definitive Certificates), and Exhibit G-2 (in the case of ownership
interests in Book-Entry Certificates) are acceptable for purposes of the
preceding sentence.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account as described above in this
Certificate.
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 this Certificate, 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 this
Certificate.
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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar 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 obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, (ii) the purchase by any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Master Servicer or the
Special Servicer, in that order of preference, at a price determined as provided
in the Agreement, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund and (iii) the acquisition by the Sole Certificateholder(s) of all
the Mortgage Loans and each REO Property remaining in the Trust Fund in exchange
for all of the Certificates. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders to purchase
from the Trust Fund all the Mortgage Loans and each REO Property remaining
therein. The exercise of such right may 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
1.0% of the Initial Pool Balance.
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, the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Special Servicer, the Trustee with the consent of the
Holders of Certificates entitled to not less than 51% of the Voting Rights
allocated to all of the Classes materially affected by the amendment. 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 limited
circumstances, including any amendment necessary to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC 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 Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the 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 Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] [F] [G] [H] [J] [K] [L] [M]
Certificates referred to in the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
as Certificate Registrar
By:____________________________________
Authorized Representative
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such 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.
EXHIBIT A-4
FORM OF CLASS N, CLASS O, CLASS P AND CLASS Q CERTIFICATES
CLASS [N] [O] [P] [Q] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES
2006-C3
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the
Class [N] [O] [P] [Q] Certificates
as of the Closing Date:
$__________
Closing Date: June 30, 2006 Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
$__________
First Distribution Date: Aggregate Cut-off Date Principal
July 17, 2006 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,934,069,324
Master Servicer and Special Trustee:
Servicer: Xxxxx Fargo Bank, N.A.
Midland Loan Services,
Inc.
Certificate No. [N] [O] [P] [Q] - ___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT.
A TRANSFEREE SHALL ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A AND IT IS A U.S. PERSON WITHIN THE MEANING OF RULE 902 UNDER REGULATION S.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO 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
ANY ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") OR (B) 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 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 CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK, N.A., MIDLAND
LOAN SERVICES, INC., PNC BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
[Legend for Regulation S Global Certificate -- PRIOR TO THE DATE THAT IS 40 DAYS
AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND
(B) JUNE 30, 2006, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.]
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED 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 amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [N] [O] [P]
[Q] Certificates (their "Class Principal Balance") as of the Closing Date) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [N] [O] [P] [Q] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of June 1, 2006 (the "Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp., as depositor (the "Depositor", which term includes successors
in interest), Midland Loan Services, Inc., as Master Servicer (in such capacity,
the "Master Servicer," which term includes any successors in interest), and
Special Servicer (in such capacity, the "Special Servicer", which term includes
any successors in interest), and Xxxxx Fargo Bank, N.A. 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, capitalized terms used herein have the
respective meanings assigned thereto 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 its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, 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 to all the Holders of the
Class [N] [O] [P] [Q] Certificates on the applicable Distribution Date pursuant
to the Agreement. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Collateral Support Deficit in respect of this Certificate) will be made in
like manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Account
and, if established, the REO Account 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.
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition 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.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition 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, then (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor or any Affiliate
of the Depositor) 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 F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust 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 this Certificate constitutes a Rule 144A Global Certificate and
a transfer of any interest in this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Certificates or a transfer of any interest therein by
the Depositor, Credit Suisse Securities (USA) LLC ("CSFB") 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 F-2C hereto, 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. Any interest in a Rule
144A Global Certificate shall not be transferred to any Person who takes
delivery other than in the form of an interest in a Rule 144A Global
Certificate. Notwithstanding the preceding two sentences, any interest in a Rule
144A Global Certificate may be transferred (without delivery of any certificate
or Opinion of Counsel described in the second preceding sentence) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate of the
same Class as the Rule 144A Global Certificate, as the case may be, upon
delivery to the Certificate Registrar of (x) a certificate from the Certificate
Owner desiring to effect such transfer substantially in the form attached hereto
as Exhibit F-1D and a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached hereto as Exhibit F-2D and (y)
such written orders and instructions as are required under the applicable
procedures of DTC, Clearstream and Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in the
related Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in the related Regulation S Global
Certificate, that is equal to the denomination of beneficial interests in such
Class to be transferred. Upon delivery to the Certificate Registrar of such
certification and orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of DTC, shall reduce the denomination
of the related Rule 144A Global Certificate, and increase the denomination of
the related Regulation S Global Certificate, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
If this Certificate constitutes a Regulation S Global Certificate,
then beneficial interests in this Certificate shall not be transferred to any
Person who takes delivery other than in the form of a beneficial interest in
this Certificate, and the Certificate Owner desiring to effect such transfer
shall be required to obtain from such Certificate Owner's prospective Transferee
a Regulation S Certificate. On or prior to the Release Date, beneficial
interests in any Regulation S Global Certificate may be held only through
Euroclear or Clearstream. After the Release Date, beneficial interests in any
Regulation S Global Certificate may be held through Euroclear, Clearstream or
any other direct account holder at DTC.
The Rule 144A Global Certificates and the Regulation S Global
Certificates shall be deposited with the Trustee as custodian for DTC and
registered in the name of Cede & Co. as nominee of DTC.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class [N] [O] [P] [Q] Certificates 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 registration or qualification. Any
Certificateholder or Certificate Owner desiring to effect a transfer, sale,
pledge or other disposition of this Certificate or any interest herein shall,
and does hereby agree to, indemnify the Depositor, Credit Suisse Securities
(USA) LLC, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if such transfer,
sale, pledge or other disposition 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 (A) to any retirement plan or other employee benefit plan or 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 Section 4975 of the Code or any essentially similar
provision of applicable federal, state or local law ("Similar Law") (each, a
"Plan"), or (B) to 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 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
Similar Law or would result in the imposition of an excise tax under Section
4975 of the Code or Similar Law. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in 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) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA and Section 4975 of the Code by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60 (or similar
exemption under Similar Law); or (iii) if this Certificate is rated investment
grade by at least one of the Rating Agencies and is being acquired by, on behalf
of or with assets of a Plan in reliance Prohibited Transaction Exemption 89-90,
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, any Exemption-Favored Party, the Master
Servicer, the Special Servicer, any Sub-Servicer or any Borrower with respect to
Mortgage Loans constituting 5% of the aggregate unamortized principal of all the
Mortgage Loans determined as of the Closing Date, or by an Affiliate of any such
Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, 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) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Certificate Registrar
(or, if applicable, the Certificate Owner effecting the transfer) that such
transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or Similar Law or result in the imposition of an excise
tax under Section 4975 of the Code or Similar Law. It is hereby acknowledged
that the forms of certification attached to the Agreement as Exhibit G-1 (in the
case of Definitive Certificates), and Exhibit G-2 (in the case of ownership
interests in Book-Entry Certificates) are acceptable for purposes of the
preceding sentence.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account as described above in this
Certificate.
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 this Certificate, 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 this
Certificate.
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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar 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 obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, (ii) the purchase by any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Master Servicer or the
Special Servicer, in that order of preference, at a price determined as provided
in the Agreement, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund and (iii) the acquisition by the Sole Certificateholder(s) of all
the Mortgage Loans and each REO Property remaining in the Trust Fund in exchange
for all of the Certificates. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders to purchase
from the Trust Fund all the Mortgage Loans and each REO Property remaining
therein. The exercise of such right may 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
1.0% of the Initial Pool Balance.
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, the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Special Servicer, the Trustee with the consent of the
Holders of Certificates entitled to not less than 51% of the Voting Rights
allocated to all of the Classes materially affected by the amendment. 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 limited
circumstances, including any amendment necessary to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC 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 Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the 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 Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [N] [O] [P] [Q] Certificates referred to
in the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
as Certificate Registrar
By:____________________________________
Authorized Representative
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such 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.
EXHIBIT A-5
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C3
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Closing Date: June 30, 2006 Percentage Interest evidenced by
this Class V Certificate:
______%
First Distribution Date: Aggregate Cut-off Date Principal
July 17, 2006 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,934,069,324
Master Servicer and Special Trustee:
Servicer: Xxxxx Fargo Bank, N.A.
Midland Loan Services,
Inc.
Certificate No. V-___ CUSIP No.: _____________
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 (A) TO 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
ANY ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") OR (B) 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 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.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK, N.A., MIDLAND
LOAN SERVICES, INC., PNC BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS
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 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 Fund evidenced by all the
Class V Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2006
(the "Agreement"), among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor (the "Depositor", which term includes successors in interest),
Midland Loan Services, Inc., as Master Servicer (in such capacity, the "Master
Servicer," which term includes any successors in interest), and Special Servicer
(in such capacity, the "Special Servicer", which term includes any successors in
interest), and Xxxxx Fargo Bank, N.A. 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, capitalized terms used herein have the respective meanings assigned
thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, 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 to all the Holders of the
Class V Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Account
and, if established, the REO Account 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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition 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, then (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor or any Affiliate
of the Depositor) 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 F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust 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. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Credit Suisse Securities (USA) LLC,
the Trustee, the Master Servicer, the Special Servicer, and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition 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 except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification to the effect that such prospective Transferee is a Qualified
Institutional Buyer or an Institutional Accredited Investor.
No transfer of this Certificate or any interest herein shall be
made (A) to any retirement plan or other employee benefit plan or 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 Section 4975 of the Code or any essentially similar
provision of applicable federal, state or local law("Similar Law") (each, a
"Plan"), or (B) to 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 a Plan. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee 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. It is hereby acknowledged that the form of certification attached to
the Agreement as Exhibit G-1 is acceptable for purposes of the preceding
sentence.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account described above in this
Certificate.
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 this Certificate, 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 this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar 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 obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, (ii) the purchase by any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Master Servicer or the
Special Servicer, in that order of preference, at a price determined as provided
in the Agreement, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund and (iii) the acquisition by the Sole Certificateholder(s) of all
the Mortgage Loans and each REO Property remaining in the Trust Fund in exchange
for all of the Certificates. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders to purchase
from the Trust Fund all the Mortgage Loans and each REO Property remaining
therein. The exercise of such right may 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
1.0% of the Initial Pool Balance.
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, the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Special Servicer, the Trustee with the consent of the
Holders of Certificates entitled to not less than 51% of the Voting Rights
allocated to all of the Classes materially affected by the amendment. 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 limited
circumstances, including any amendment necessary to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC 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 Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the 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 Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
as Certificate Registrar
By:____________________________________
Authorized Representative
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such 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.
EXHIBIT A-6
FORM OF [CLASS R] [CLASS LR] CERTIFICATES
CLASS [R] [LR] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C3
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Closing Date: June 30, 2006 Percentage Interest evidenced by
this Class [R] [LR] Certificate:
___%
First Distribution Date: Aggregate Cut-off Date Principal
July 17, 2006 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,934,069,324
Master Servicer and Special Trustee:
Servicer: Xxxxx Fargo Bank, N.A.
Midland Loan Services,
Inc.
Certificate No. [R] [LR]-___ CUSIP No.: _____________
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 (A) TO 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
ANY ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") OR (B) 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 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.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK, N.A., MIDLAND
LOAN SERVICES, INC., PNC BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE. CONSEQUENTLY, 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, IF ANY, ON THIS CERTIFICATE.
This certifies that Credit Suisse Securities (USA) LLC is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Class [R] [LR] Certificates. The Trust Fund was created and
the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as of June 1, 2006 (the "Agreement"), among Credit Suisse First Boston
Mortgage Securities Corp., as depositor (the "Depositor", which term includes
successors in interest), Midland Loan Services, Inc., as Master Servicer (in
such capacity, the "Master Servicer," which term includes any successors in
interest), and Xxxxx Fargo Bank, N.A. as trustee (the "Trustee", which term
includes any successors in interest), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, 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 to all the Holders of the
Class [R] [LR] Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Account
and, if established, the REO Account 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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition 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, then (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor or any Affiliate
of the Depositor) 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 F-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust 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. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Credit Suisse Securities (USA) LLC,
the Trustee, the Master Servicer, the Special Servicer, and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition 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 except to a Qualified Institutional Buyer. The Certificate Registrar shall
refuse to register the transfer of this Certificate unless it has received from
the prospective Transferee a certification to the effect that such prospective
Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be
made (A) to any retirement plan or other employee benefit plan or 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 Section 4975 of the Code or any essentially similar
provision of applicable federal, state or local law ("Similar Law") (each, a
"Plan"), or (B) to 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 a Plan. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee 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. It is hereby acknowledged that the form of Certification attached to
the Agreement as Exhibit G-1 is acceptable for purposes of the preceding
sentence.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its 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 (i) to deliver payments to a Person other
than such Person and (ii) to negotiate the terms of any mandatory disposition,
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 Trustee 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 H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
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,
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 either the
Certificate Registrar or Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. In connection
therewith, the Certificate Registrar shall not register the transfer of an
Ownership Interest in this Certificate to any entity classified as a partnership
under the Code unless at the time of transfer, all of its beneficial owners are
United States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person 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 Trustee written notice that
it is a "pass-through interest holder" within the meaning of temporary Treasury
regulation 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 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 result in an Adverse Rating Event with respect to any Class
of Rated Certificates; and (b) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, to the effect that such modification of, addition
to or elimination of such provisions will not cause any Trust REMIC to cease to
qualify as a REMIC or be subject to an entity-level tax caused by the Transfer
of a Class [R] [LR] Certificate to a Person that 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] [LR] Certificate to a
Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Disqualified Non-United States Tax Person".
In addition, if such Transferee is classified as a partnership under the Code,
such Transferee can be a "Permitted Transferee" only if, among other things, all
of its beneficial owners are United States Persons and the governing documents
of the Transferee prohibit a transfer of any interest in the Transferee to any
Non-United States Tax Person.
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, any State or 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
Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than 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 and (v) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class [R] [LR] Certificate by such Person may cause
the Trust 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] [LR] 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 "Disqualified Non-United States Tax Person," with certain
exceptions described in the Agreement, is (i) any Person other than a United
States Tax Person or (ii) a United States Tax Person with respect to whom income
on an Ownership Interest is attributable 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 "United States Tax Person" is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in, or under the laws of, the United States, any
state thereof or the District of Columbia, or an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, 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 persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account described above in this
Certificate.
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 this Certificate, 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 this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar 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 obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, (ii) the purchase by any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Master Servicer or the
Special Servicer, in that order of preference, at a price determined as provided
in the Agreement, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund and (iii) the acquisition by the Sole Certificateholder(s) of all
the Mortgage Loans and each REO Property remaining in the Trust Fund in exchange
for all of the Certificates. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders to purchase
from the Trust Fund all the Mortgage Loans and each REO Property remaining
therein. The exercise of such right may 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
1.0% of the Initial Pool Balance.
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, the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Special Servicer, the Trustee with the consent of the
Holders of Certificates entitled to not less than 51% of the Voting Rights
allocated to all of the Classes materially affected by the amendment. 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 limited
circumstances, including any amendment necessary to maintain the status of any
Trust REMIC 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 Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the 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 Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.
as Trustee
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R] [LR] Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
as Certificate Registrar
By:____________________________________
Authorized Representative
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such 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.
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2006-C3
Loan Group
# # Property Name
------------------------------------------------------------------------------------------------------------------------------------
1 1 000 Xxxxxxxx
2 2 Xxxxxxx & Xxxxx FX 2
2a 2 Seven Gables
2b 2 Knollwood I and II
2c 2 Rollingwood
2d 0 Xxxxxxxx Xxxx
0x 0 Xxxxxxx Xxxx
0x 2 Falls on Clearwood
2g 2 Foxcroft
2h 0 Xxxxxxxxx Xxxxx
0x 0 Xxxxxxx
0x 0 Xxxxxx Oaks
2k 2 Twin Rivers
2l 2 Autumn Ridge
2m 0 Xxxxxxx Xxxxxx
0x 0 Xxxxxxxxxxx XX
0x 0 Xxxxxxxxx Xxxxx
0x 0 Xxxxxx Xxxxx
0x 0 Xxxxxxxxxx
3 1 535 and 000 Xxxxx Xxxxxx
0 0 Xxxxxx Xxxx
5 1 0000 Xxxxxx Xxxxxx
9 1 Marriott Milwaukee West
00 0 Xxxxxxxx Xxxxxxxxxxx
00 0 UA Sheepshead Bay 14
13 1 Spectra - Pool 2
13a 1 Spectra Retail - Shawnee, OK
13b 1 Spectra Retail - Durant, OK
00x 0 Xxxxxxx Xxxxxx - Xxxxxxx, XX
00x 1 Spectra Retail - Boaz, AL
13e 1 Spectra Retail - West Burlington, IA
13f 1 Spectra Retail - Shelbyville, IN
13g 1 Spectra Retail - Perry, FL
14 1 Spectra - Pool 3
14a 1 Spectra Retail - Plainview, TX
14b 1 Spectra Retail - Belton, TX
00x 0 Xxxxxxx Xxxxxx - Xxxxxx, XX
00x 1 Spectra Retail - Pulaski, TN
14e 1 Spectra Retail - Newton, IA
14f 1 Spectra Retail - Oskaloosa, IA
14g 1 Spectra Retail - Wauseon, OH
15 2 Bexley at Xxxxxxxx Xxxxxxxxxx
00 0 Xxxxxxxxx Xxxx and Shopping Center
17 1 Residence Inn Chesapeake Greenbrier
18 1 Hilton Garden Inn Houston
19 0 Xxxxx Xxxxxx Shopping Center
20 0 Xxx Xxxx Xxxxxx Xxxxxxxxxx
00 0 Xxxx Center Office Xxxxxxxx
00 0 Xxxxxxxxx Xxxxx
00 0 Xxxxxxxxxx Xxxxxx
26 2 Crystal Lake Apartments
00 0 Xxxxxx Xxxxx
00 0 Forum Apartments
30 1 Home Depot Call Center
31 1 Xxxx Xxxx Isle Professional Center
32 1 Hennepin Business Center
33 1 Best Western Movieland
34 1 Best Xxxxxxx Xxxxxxxxxx Xxxxxx
00 0 Xxxxxxxxx Xxxx Square
36 1 Bradhurst Court
37 2 Amesbury at Deerfield
40 1 Independence Village of Grand Ledge
41 1 Tech Center VI
42 1 4901, 4931 and 0000 Xxxxx Xxxxx
00 0 Xxxxxxxxxx Xxxxxxxxxx
00 0 Xxxxxx Bonanza
46 1 Brighter
48 1 Willowbrook Shopping Center I and XX
00 0 Xxxxxxx Xxxxxx
00 0 0000 Xxxxxxx Office Center
52 1 Best Western Orlando
53 1 Four Points Sheraton
54 1 River Commons
55 1 Noble Creek Shops
57 2 Lakeview Apartments
59 2 Briar Club Apartments
60 1 MacArthur Plaza I and II
61 2 Biltmore Park
00 0 Xxxxxxxxx Xxxxxxxxxxx
00 0 Palms to Pines
66 1 Aerospace Xxxxx Xxxxxx Xxxxxx
00 0 Xxxxxxxxxx Xxxxxx Shopping Center
68 1 Milford Stop and Shop Shopping Center
70 1 Xxxxx xx Xxxxxxx
00 0 Xxxxxxxxxxx Xxxxx Xxxxxx Xxxx
00 0 Comfort Suites Visalia
73 2 Eagle Creek Apartments
75 1 723 Main
76 1 Manatee Village
77 1 Redwood and Xxxxxxxx
00 0 000 Xxxxx Xxxxxx
79 0 Xxxx Xxxxxxx Apartments
82 1 Block Y Retail Condo
83 1 Lincoln Business Center
84 2 Twin Oaks Mobile Home Park
00 0 Xxxxxxxxx Xxxxx Xxxxxxxxxx
00 0 Xxx Xxxxx Xxxxxxxxxx
00 0 Xxx Xxxxxx Professional Center
88 1 Bellevue Plaza
89 1 Hampton Inn Sterling Heights
90 1 Roosevelt Center
91 1 Xxxxxx Xxxxxx Shoppes
92 0 Xxxxx Xxxxx xx Xxxxxx Xxxxx
93 2 Oxon Park Apartments
94 2 Westwinds Mobile Home Park
95 1 Comfort Suites Arena
96 1 Creekstone Xxxxxxx Xxxxxxxx Xxxxxx
00 0 Xxxxxxxxx Xxxxxxx Mobile Home Park
98 1 Pecos Trail Office (Phase II)
99 1 University
100 1 Fairfield Inn Columbia
101 1 0000 Xxxxxxx Xxxxxxxxx
102 1 Cottonwood Medical Center
103 1 Fountain Valley Self Storage
104 2 Casa Espana/Casa Royale
105 1 000 Xxxxxxxxxxxxx Xxxxxx
106 1 Wolf Creek Xxxxxx
000 0 000 Xxxxx Xxxxxxxx Xxxxxx
000 0 Pasadena Self Storage
109 1 Sweetwater Crossing
110 1 Weatherstone Promenade
111 1 Village at Xxxxxxxx Mill
112 1 Hampton Inn Havelock
113 1 Village Commons I and II
114 1 International Shops
115 1 Sunnymead Shopping Center
116 2 Hampton House Villas
117 1 00000 Xxxxxxxxx Xxxxx
118 1 San Xxxx Capistrano Self Storage
119 1 Hartford Self Storage
120 1 401 East Ontario
121 1 Airport Discount Storage
122 2 Royal Arms Apartments
123 1 Xxxxxxx and Xxxx Business Park
124 1 Portland Shopping Xxxxxx
000 0 Xxxxxxx Xxxxxxxxxx
000 0 Xxxxxxx Xxxxxx Shopping Center
127 1 2074 Park Street
128 2 Hilltop Manor Apartments
129 1 79 Shops
131 1 Desert Bloom Plaza
132 1 000 Xxxx 00xx Xxxxxx
133 0 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
000 0 Xxxxxxx Retail
136 1 Vietnamese Center
137 1 Jefferson Highway Retail
138 1 Slide Retail
139 1 Madison Marketplace
140 1 Scatterfield Shoppes
141 1 Bluffton Towne Center
142 1 Poway Garden Self Storage
143 0 Xxxxxxx Xxxxxx Shopping Center
144 1 Xxxxxxx Center
146 2 Covered Oaks Mobile Home Park
000 0 0000 Xxxxx Xxxxxx Xxxxxx Office Building
148 1 Hopewell Medical Building
149 0 Xxxxxx Xxxx Mobile Home Park
150 1 Lockfield Shoppes Retail
151 1 West Little York
152 1 Martinview Mobile Home Park
153 1 Big Bear Xxxxxx Xxxxxxxx
000 0 Xxxxxxx Xxxxxx Xxxxxxx
156 2 Keoway Village Apartments
157 1 West Seattle Retail
# Address City
------------------------------------------------------------------------------------------------------------------------------------
1 000 Xxxxxxxx Xxx Xxxx
2
0x 00 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
0x 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx
0x 0000 Xxxxxx Xxxxxx Xxxxxxxx
0x 00000 Xxxx Xxxxxxxxx Xxxxxxx
0x 0000 Xxxxxxxxx Xxxxx Xxxxxxxx
0x 000 Xxxxxxxxx Xxxxx Xxxxxxxxxx
0x 0000 Xxxxx Xxxx Xxxxx Highway Tampa
2h 10901 Meadowglen Lane Houston
2i 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxx
0x 000 Xxxxx Xxxx Xxxx Xxxxxx
2k 600 Xxxxxxx Xxxxxxxxx Drive Hopewell
2l 199 Wind Road Greensboro
2m 0000 Xxxxxxxx Xxxxx Xxxxxxxxx
0x 0000 Xxxxxxx Xxxxx Xxxxxxxx
0x 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx
0x 13500 Xxxxxxx Xxxxxx Xxxxx
0x 0000 Xxxxxxxxxx Xxxx Macon
3 535 and 000 Xxxxx Xxxxxx Xxx Xxxx
4 00 Xxxxxx Xxxxx Xxxxxxx
5 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
9 West 231 North 1600 Corporate Court Waukesha
10 800-888 New Los Angeles Xxxxxx Xxxxxxxx
00 0000 Xxxxx Parkway Brooklyn
13
13a 0000 Xxxxx Xxxxx Xxxxxx Shawnee
13b 000 Xxxxxxxxxx Xxxxx Xxxxxx
13c 0000 Xxxx Xxxxxx Xxxxxxx
13d 0000-0000 Xxxxxxx 000 Xxxx
00x 000 Xxxx Xxxxxx Xxxx Xxxx Xxxxxxxxxx
13f 000 Xxx Xxxxxxxxx Xxxxxxxxxxx
13g 0000-0000 Xxxxx Xxxxxxxxx Xxxxxx Perry
14
14a 0000 Xxxxxx Xxxxxx Xxxxxxxxx
00x 000-000 Xxxxxx Xxxx Xxxxxx
14c 123-161 Minden Shopping Drive Minden
14d 0000 Xxxx Xxxxxxx Xxxxxx Pulaski
14e 000-000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxx
00x 000 Xxxxxxxxxxx Xxxxx Xxxxxxxxx
00x 000-000 Xxxx Xxxxxxx Xxxxxxx Xxxxxxx
00 12825 Vinings Creek Drive Xxxxxxxx
00 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx
17 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx
18 00000 Xxxx X. Xxxxxxx Xxxxxxxxx Xxxxxxx
19 0000-0000 Xxxxx XxXxxxxxxx Xxxxx and 0000-0000 Xxxx Xxxxxxxxx Xxxx Tempe
20 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx Xxxxxxxx
21 0000 Xxxxxx Xxxxxxx Xxxxxx
24 1701-1877 East Daily Drive Camarillo
25 00000 Xxxxxxxxxx Xxxxx Xxxxx Xxxx Xxxxx
26 0000 Xxxxxxx 00 Xxxx Pensacola
27 0000 Xxxx Xxxxx Xxxx Xxxx Xxxxx
29 000 Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx
30 00000 Xxxxxxx Xxxx Addison
31 10311 Cross Creek Boulevard Tampa
00 000-000 and 0000-0000 00xx Xxxxxx Southeast Minneapolis
33 0000 Xxxxxxxxxxxxx Xxxxx Xxxxxxx
34 000 Xxxx 00xx Xxxxxx Xxx Xxxx
35 00-00 Xxxx Xxxx Xxxx and 0000-0000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx Heights
36 000 Xxxx 000xx Xxxxxx Xxx Xxxx Xxxx
37 0000 Xxxxxxxx Xxxxxx San Antonio
40 4775 Village Drive Grand Ledge
41 5575 Tech Center Drive Colorado Springs
42 4901, 4931 and 0000 Xxxxx Xxxxx Bowie
43 0000 Xxxxxxxxxx Xxxxx Grapevine
45 0000-0000 Xxxx Xxxxxxx Xxxx and 000-000 Xxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxx
46 0000 Xxxxx Xxxxx Xxxxxxxx
48 17685, 17695, 00000-00000 Xxxxx Xxxxxxx 000 and 0000 Xxxx XX 0000 Xxxxxxx
49 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx
50 0000 Xxxxxxx Xxxx Xxxxxxxxx
52 0000 Xxxx Xxxx Xxxxxx Kissimmee
53 00000 Xxxxx Xxxxx Xxxxxxx Xxxx Xxxxxxx
54 0000 Xxxxxxx Xxxxx Xxx Xxxxxxx
55 0000-0000 Xxxxxxxx Xxxxxx Noblesville
57 0000 Xxxxxx X. Xxxxx Xxxxxxxxxx Xxxxx City
59 0000 Xxxxx Xxxxx Xxxx Memphis
60 0000 Xxxxx Xxxxx Xxxx Cabin Xxxx
61 1111 Vista Valet San Antonio
63 17417-17445 Xxxxx Road Westfield
65 72755-72795 Highway 111 and 72740-72780 Xx Xxxxx Xxxxx Xxxx Xxxxxx
00 0000 Xxxxxxxxx Xxxx Xxxxxx
67 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxx
68 000 Xxxxxx Xxxxxx Xxxxxxx
70 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxxx
71 3951 and 00000 Xxxxxxxx Xxxxxxx Xxxx Xxxxx
72 000 Xxxx Xxxxxxx Xxxxxx Visalia
73 0000 Xxxxx Xxx Xxxxxx Xxxxxx
75 000 Xxxx Xxxxxx Xxxxxxx
76 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx
77 0000-0000 Xxxxxxxx Xxxxxx Vallejo
78 000 Xxxxx Xxxxxx Xxxxxxxxxxx
79 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx
82 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
83 000 Xxxxx Xxxxxxx Xxxxxx and 000 Xxx Xxxxxx Xxxxxx
84 0000 Xxxxxxxx Xxxxxxx Mableton
85 000 Xxxxx Xxxx Xxxxxxx
86 0000 Xxxxxxx Xxxxxx Xxxxxxx
87 4602, 4610 and 0000 Xxxx Xxxxxxxxxx Xxx Xxxxxxx
88 2770 and 0000 Xxxxx Xxxxx Xxxx Xxxxx Xxxx
89 00000 Xxx Xxxx Xxxxxx Xxxxxxxx Xxxxxxx
90 0000-0000 Xxxxxxxxx Xxxxxx Carlsbad
91 0000 Xxxxxxxxx Xxxxx Xxxxxxxx Beach
92 0000 Xxxxx 00xx Xxxxxx Temple
93 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx
94 000 Xxxxxxxx Xxxxxx Cheyenne
95 0000 Xxxxxxxxx Xxxxx Xxx Raleigh
96 00000 Xxxxxxx 00 Xxxxxxxxx
97 0000 Xxxxx Xxxxxx Xxxxxx St. Helens
98 1800 and 0000 Xxx Xxxxx Xxxxx Xxxxx Xx
99 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx
100 000 Xxxxxxxxxx Xxxxx Xxxxxxxx
101 0000 Xxxxxxx Xxxxxxxxx Xxx Xxxxxxx
102 0000 Xxxxxxx Xxxxxxxxx Xxxxxx
103 00000 Xxxxxx Xxxxxx Fountain Valley
104 0000 Xxxxx Xxxx Xxxxxx and 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx
105 000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxxxxx
106 00 Xxxx Xxxxx Xxxxx Swansea
107 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx Manor
108 0000 Xxxxxx Xxxxxx Xxxxxxxx
109 0000-0000 Xxxxxxx 00 Xxxxx Xxxx Xxxxx
110 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx
111 0000 Xxxxxxxxx Xxxxxxx Xxxxxx
000 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxx
113 000 Xxxxx Xxxxx Xxxx 000 and 0000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxxxxx
114 0000 Xxxxxxxx Xxxxxx Xx Jolla
115 24541-24565 and 24641-24661 Alessandro Xxxxxxxxx Xxxxxx Xxxxxx
000 0000 Xxxxx Xxxxx Xxxxx Essexville
117 00000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxx
118 26411 Xxx Xx Xxxx Xxx Xxxx Xxxxxxxxxx
000 0000 Xxxx Street Hartford
120 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
121 1004 North Xxxxxxxx Boulevard Kissimmee
122 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxx
000 00000 and 00000 Xxxxxxx Xxxxxx Huntington Beach
124 0000 XX Xxxxxxx 000 Xxxxxxxx
125 17525-17535 Madison Avenue Lakewood
126 19325-19371 South Xxxxx Highway Miami
127 0000-0000 Xxxx Xxxxxx Hartford
128 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
129 0000 Xxxxxxxxx 00 Xxxxxx Xxxxx
131 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxx Xxxxx
132 000 Xxxx 00xx Xxxxxx Xxx Xxxx
133 0000-0000 Xxxxxxx 00 Xxxxx Xxxxxxxx
134 000 00xx Xxxxxx Xxxxxx
136 0000 Xxxxxx Xxxxxxx Xxxxxxxx
137 0000 Xxxxxxxxx Xxxxxxx Xxx Xxxxxxx
138 10101 Slide Road Lubbock
139 00000 Xxxxxxx Xxxxxx Murrieta
140 0000-0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx
000 00 Xx. Xxxxxxxxxx Xxxxx Xxxxxxxx
142 00000 Xxxxxx Xxxx Poway
143 9801 West Markham Street Little Rock
144 0000-0000 Xxxx Xxxxxxx Xxxxxx Santa Xxx
146 0000 Xxxxxxxxxxx Xxxxx Xxxxxx
147 0000 Xxxxx Xxxxxx Xxxxxx Campbell
148 0000 Xxxxx Xxxxx Xxxxxxxx
149 0000 00xx Xxxxxx Xxxxx Xxxxxx
150 000 Xxxx 00xx Xxxxxx Xxxxxxxxxxxx
000 00000 and 00000 Xxxx Xxxxxx Xxxx Xxxx Katy
152 2007 Xxxx Road Bellevue
153 40794 Village Drive Big Bear Lake
155 000 Xxxxxx Xxxx Xxxxxx Xxxxxxx Island
156 50 Keoway Drive Seneca
157 0000-0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
Xxxxx/
Xx. Ft./ Orig
Zip Property Rooms/ Original Cut-off Amort.
# County State Code Type Pads Balance Balance (1) Term
------------------------------------------------------------------------------------------------------------------------------------
1 Xxx Xxxx XX 00000 Office 1,046,634 $353,000,000 $353,000,000 Interest Only
2 $198,599,584 $198,599,584 000
0x Xxxxxxx XX 00000 Multifamily 1,184 $50,885,110 $50,885,110
2b Xxxxx Xxxxx XX 00000 Multifamily 608 $25,432,961 $25,432,961
2c Xxxxxxxxxxxx XX 00000 Multifamily 278 $13,114,275 $13,114,275
2d Xxxxxx XX 00000 Multifamily 354 $12,072,005 $12,072,005
2e Xxxxxx XX 00000 Multifamily 260 $11,000,337 $11,000,337
2f Xxxxxx XX 00000 Multifamily 236 $10,546,965 $10,546,965
2g Xxxxxxxxxxxx XX 00000 Multifamily 192 $10,282,006 $10,282,006
2h Xxxxxx XX 00000 Multifamily 336 $10,090,497 $10,090,497
2i Xxxxxxx XX 00000 Multifamily 238 $9,617,917 $9,617,917
2j Xxxxxxxxx XX 00000 Multifamily 240 $6,777,151 $6,777,151
2k Xxxxxxxx Xxxx XX 00000 Multifamily 149 $6,176,782 $6,176,782
2l Xxxxxxxx XX 00000 Multifamily 276 $6,109,093 $6,109,093
2m Xxxxxxxxxxx XX 00000 Multifamily 200 $5,821,077 $5,821,077
2n Xxxxxxxx Xxxx XX 00000 Multifamily 160 $5,749,790 $5,749,790
2o Xxxxxx XX 00000 Multifamily 226 $5,525,106 $5,525,106
2p Xxxxxxxx XX 00000 Multifamily 104 $5,429,173 $5,429,173
2q Xxxx XX 00000 Multifamily 104 $3,969,339 $3,969,339
3 Xxx Xxxx XX 00000 Office 498,769 $177,000,000 $177,000,000 Xxxxxxxx Xxxx
0 Xxxxxxxxx XX 00000 Office 620,642 $76,800,000 $76,800,000 360
5 Xxxxxxxxxxxx XX 00000 Office 456,922 $63,120,000 $63,120,000 360
9 Xxxxxxxx XX 00000 Hotel 282 $30,000,000 $30,000,000 360
10 Xxxxxxx XX 00000 Retail 207,300 $25,500,000 $25,500,000 360
12 Xxxxx XX 00000 Retail 78,324 $22,000,000 $21,981,136 360
13 $20,800,574 $20,800,574 360
13a Xxxxxxxxxxxx XX 00000 Retail 35,640 $3,920,000 $3,920,000
13b Xxxxx XX 00000 Retail 32,200 $3,573,434 $3,573,434
00x Xxxx Xxxxx Xxxxx XX 00000 Retail 29,600 $3,360,000 $3,360,000
13d Xxxxxxxx XX 00000 Retail 27,900 $3,104,032 $3,104,032
13e Xxx Xxxxxx XX 00000 Retail 26,100 $2,912,000 $2,912,000
13f Xxxxxx XX 00000 Retail 14,150 $2,000,391 $2,000,391
13g Xxxxxx XX 00000 Retail 14,900 $1,930,717 $1,930,717
14 $19,386,345 $19,386,345 360
14a Xxxx TX 79072 Retail 31,720 $4,407,509 $4,407,509
14b Xxxx XX 00000 Retail 28,060 $3,760,000 $3,760,000
14c Xxxxxxx XX 00000 Retail 27,300 $3,120,000 $3,120,000
14d Xxxxx XX 00000 Retail 28,100 $2,543,728 $2,543,728
14e Xxxxxx XX 00000 Retail 20,300 $2,080,000 $2,080,000
14f Xxxxxxx XX 00000 Retail 20,700 $1,872,043 $1,872,043
14g Xxxxxx XX 00000 Retail 13,100 $1,603,065 $1,603,065
15 Xxxxxxxxxxx XX 00000 Multifamily 240 $17,750,000 $17,750,000 360
16 Xxxxxx XX 00000 Retail 225,160 $16,300,000 $16,300,000 360
17 Xxxxxxxxxx Xxxx XX 00000 Hotel 121 $14,600,000 $14,600,000 360
18 Xxxxxx XX 00000 Hotel 182 $14,067,000 $14,067,000 360
19 Xxxxxxxx XX 00000 Retail 105,180 $14,000,000 $14,000,000 360
20 Xxxx XX 00000 Multifamily 344 $13,650,000 $13,650,000 360
21 Xxxxxxx XX 00000 Office 55,283 $13,550,000 $13,550,000 360
24 Xxxxxxx XX 00000 Retail 74,026 $12,485,000 $12,485,000 360
25 Xxxx Xxxxx XX 00000 Retail 161,755 $12,300,000 $12,300,000 360
26 Escambia FL 32506 Multifamily 224 $12,112,000 $12,112,000 360
27 Xxxx Xxxxx XX 00000 Retail 165,747 $12,000,000 $12,000,000 360
29 Xxxxxxxx XX 00000 Multifamily 394 $11,600,000 $11,600,000 360
30 Xxxxxx XX 00000 Office 137,992 $11,600,000 $11,600,000 360
31 Xxxxxxxxxxxx XX 00000 Mixed Use 79,770 $11,300,000 $11,300,000 360
32 Hennepin MN 55414 Office 140,063 $11,200,000 $11,200,000 Xxxxxxxx Xxxx
00 Xxxxxx XX 00000 Hotel 261 $11,066,000 $11,066,000 300
34 Xxx Xxxx XX 00000 Hotel 83 $11,000,000 $11,000,000 300
35 Xxxx XX 00000 Retail 90,826 $10,900,000 $10,838,877 360
36 Xxx Xxxx XX 00000 Retail 84,442 $10,000,000 $10,000,000 Xxxxxxxx Xxxx
00 Xxxxx XX 00000 Multifamily 284 $9,800,000 $9,800,000 360
40 Xxxxx XX 00000 Healthcare 126 $9,250,000 $9,206,135 300
41 Xx Xxxx XX 00000 Office 104,439 $9,200,000 $9,200,000 Interest Only
00 Xxxxxx Xxxxxxx XX 00000 Industrial 83,680 $9,100,000 $9,082,711 360
43 Xxxxxxx XX 00000 Multifamily 376 $9,000,000 $9,000,000 360
45 Xxxxx XX 00000 Retail 80,963 $9,000,000 $8,983,164 360
46 Xxxxxxxx Xxxx XX 00000 Healthcare 94 $8,700,000 $8,670,259 300
48 Xxxxxx XX 00000 Retail 36,804 $8,443,000 $8,443,000 360
49 Xxxxxxxx XX 00000 Multifamily 294 $8,400,000 $8,400,000 360
50 Xxxxxxx XX 00000 Office 59,981 $8,165,000 $8,165,000 360
52 Xxxxxxx XX 00000 Hotel 223 $8,100,000 $8,053,074 300
53 Xxxxxxxx XX 00000 Hotel 284 $8,000,000 $7,967,581 300
54 Xxxxxxx XX 00000 Retail 59,235 $7,925,000 $7,925,000 360
55 Xxxxxxxx XX 00000 Mixed Use 82,966 $7,540,000 $7,540,000 360
57 Xxxxxxxxx XX 00000 Multifamily 304 $7,500,000 $7,500,000 360
59 Xxxxxx XX 00000 Multifamily 272 $7,400,000 $7,400,000 360
60 Xxxxxxxxxx XX 00000 Mixed Use 43,114 $7,100,000 $7,100,000 360
61 Xxxxx XX 00000 Multifamily 264 $6,900,000 $6,900,000 360
63 Xxxxxxxx XX 00000 Retail 40,600 $6,900,000 $6,900,000 300
65 Xxxxxxxxx XX 00000 Retail 44,099 $6,800,000 $6,716,359 360
66 Xxxxxx Xxxxxxx XX 00000 Retail 24,332 $6,300,000 $6,287,952 360
67 Xxxx XX 00000 Retail 67,766 $6,000,000 $6,000,000 360
68 Xxxxxxxxxxxx XX 00000 Retail 77,830 $6,000,000 $5,991,717 300
70 Dupage IL 60106 Retail 37,775 $5,700,000 $5,700,000 360
71 Henrico VA 23060 Office 46,077 $5,700,000 $5,700,000 360
72 Tulare CA 93291 Hotel 72 $5,500,000 $5,500,000 300
73 Xxxxxxxx XX 00000 Multifamily 114 $5,500,000 $5,500,000 360
75 Xxxxxx XX 00000 Office 92,277 $5,491,000 $5,486,824 360
76 Xxxxxxxx XX 00000 Retail 103,738 $5,450,000 $5,450,000 000
00 Xxxxxx XX 00000 Retail 23,334 $5,415,000 $5,410,938 360
78 Xxxxxxxx XX 00000 Retail 68,295 $5,400,000 $5,391,143 360
79 Xxxxxx Xxxxxxx XX 00000 Multifamily 228 $5,230,000 $5,230,000 360
82 Xxxx XX 00000 Retail 27,187 $5,150,000 $5,150,000 360
83 Xxxxxxxxx XX 00000 Mixed Use 57,078 $5,000,000 $4,990,374 360
84 Xxxx XX 00000 Multifamily 146 $5,000,000 $4,979,068 360
85 Xxxxxxx XX 00000 Multifamily 228 $4,750,000 $4,750,000 360
86 Xxxxxx XX 00000 Multifamily 162 $4,700,000 $4,610,875 360
87 Bexar TX 78222 Office 29,080 $4,390,000 $4,386,806 360
88 Xxxxxx XX 00000 Mixed Use 21,230 $4,350,000 $4,350,000 360
89 Xxxxxx XX 00000 Hotel 76 $4,350,000 $4,350,000 300
90 Xxx Xxxxx XX 00000 Mixed Use 38,488 $4,300,000 $4,300,000 360
91 Xxxxxxxx Xxxxx XX 00000 Retail 30,000 $4,250,000 $4,250,000 360
92 Xxxx XX 00000 Multifamily 176 $4,200,000 $4,200,000 360
93 Xxxxxx Xxxxxxx XX 00000 Multifamily 162 $4,120,000 $4,120,000 360
94 Xxxxxxx XX 00000 Multifamily 295 $4,100,000 $4,100,000 360
95 Xxxx XX 00000 Hotel 82 $4,000,000 $3,989,667 000
00 Xx. Xxxxxxx XX 00000 Retail 19,963 $3,965,000 $3,961,705 360
97 Xxxxxxxx XX 00000 Multifamily 132 $3,600,000 $3,593,574 000
00 Xxxxx Xx XX 00000 Office 32,354 $3,500,000 $3,500,000 360
99 Xxxxxxx XX 00000 Retail 32,000 $3,493,000 $3,493,000 360
100 Xxxxxxxxx XX 00000 Hotel 84 $3,400,000 $3,375,121 300
101 Xxx Xxxxxxx XX 00000 Retail 8,056 $3,320,000 $3,320,000 360
102 Xxxx Xxxx XX 00000 Office 30,401 $3,300,000 $3,300,000 360
103 Xxxxxx XX 00000 Self Storage 89,653 $3,250,000 $3,250,000 360
104 Pima AZ 85719 Multifamily 223 $3,200,000 $3,200,000 360
105 Xxxxxx XX 00000 Office 18,000 $3,200,000 $3,197,717 000
000 Xxxxx Xxxxx XX 00000 Office 19,638 $3,200,000 $3,197,348 360
107 Xxxxxxxxxxx XX 00000 Office 23,300 $3,200,000 $3,183,417 360
108 Xxx Xxxxxxx XX 00000 Self Storage 62,732 $3,150,000 $3,150,000 000
000 Xxxx XX 00000 Retail 28,655 $3,150,000 $3,144,301 000
000 Xxxxxxxx XX 00000 Retail 17,254 $3,125,000 $3,125,000 360
111 Xxxxxxxx XX 00000 Retail 11,649 $3,120,000 $3,114,254 000
000 Xxxxxx XX 00000 Hotel 60 $3,100,000 $3,077,496 300
113 Xxxxxxx IN 46142 Retail 22,632 $3,050,000 $3,047,855 000
000 Xxx Xxxxx XX 00000 Retail 7,213 $3,000,000 $3,000,000 000
000 Xxxxxxxxx XX 00000 Retail 28,703 $3,000,000 $2,994,524 000
000 Xxx XX 00000 Multifamily 150 $2,936,000 $2,899,586 360
117 Xxx Xxxxxxx XX 00000 Office 17,168 $2,796,000 $2,796,000 360
118 Xxxxxx XX 00000 Self Storage 58,523 $2,750,000 $2,750,000 360
119 Xxxxxxxx XX 00000 Self Storage 42,052 $2,700,000 $2,680,678 300
120 Xxxx XX 00000 Retail 7,102 $2,500,000 $2,500,000 360
121 Xxxxxxx XX 00000 Self Storage 80,053 $2,500,000 $2,495,985 360
122 Xxxx XX 00000 Multifamily 60 $2,500,000 $2,495,365 360
123 Xxxxxx XX 00000 Industrial 34,320 $2,450,000 $2,445,284 000
000 Xxx Xxxxxxxx XX 00000 Retail 12,024 $2,425,000 $2,425,000 360
125 Xxxxxxxx XX 00000 Multifamily 72 $2,400,000 $2,400,000 360
126 Xxxxx-Xxxx XX 00000 Retail 25,475 $2,400,000 $2,400,000 360
127 Xxxxxxxx XX 00000 Mixed Use 41,815 $2,400,000 $2,388,023 360
128 Xxxxxx Xxxxxx'x XX 00000 Multifamily 149 $2,350,000 $2,339,728 360
129 Xxxxx-Xxxx XX 00000 Retail 24,977 $2,300,000 $2,300,000 000
000 Xxxxx XX 00000 Retail 12,152 $2,300,000 $2,300,000 360
132 Xxx Xxxx XX 00000 Mixed Use 7,000 $2,275,000 $2,248,200 000
000 Xxxxxxx XX 00000 Retail 12,600 $2,160,000 $2,160,000 360
134 Xxxxxx XX 00000 Retail 8,730 $2,100,000 $2,100,000 000
000 Xxxxxx XX 00000 Retail 14,600 $1,896,000 $1,893,102 000
000 Xxxxxxxxx XX 00000 Retail 27,750 $1,840,000 $1,819,561 000
000 Xxxxxxx XX 00000 Retail 24,800 $1,800,000 $1,800,000 360
139 Xxxxxxxxx XX 00000 Retail 5,295 $1,767,000 $1,763,965 000
000 Xxxxxxx XX 00000 Retail 9,000 $1,700,000 $1,696,862 360
141 Xxxxxxxx XX 00000 Retail 14,763 $1,600,000 $1,597,314 000
000 Xxx Xxxxx XX 00000 Self Storage 51,693 $1,600,000 $1,589,420 180
143 Pulaski AR 72205 Retail 31,263 $1,575,000 $1,575,000 324
144 Xxxxxx XX 00000 Mixed Use 52,422 $1,550,000 $1,550,000 360
146 Xxxxx XX 00000 Multifamily 51 $1,360,000 $1,360,000 000
000 Xxxxx Xxxxx XX 00000 Office 9,747 $1,259,000 $1,258,110 360
148 Xxxxxxxx Xxxx XX 00000 Office 12,550 $1,250,000 $1,250,000 360
149 Xxxxxx XX 00000 Multifamily 37 $1,250,000 $1,247,863 360
150 Marion IN 46202 Retail 6,240 $1,200,000 $1,199,149 000
000 Xxxxxx XX 00000 Industrial 42,300 $1,200,000 $1,197,374 324
152 Xxxxx XX 00000 Multifamily 112 $1,115,000 $1,114,193 360
000 Xxx Xxxxxxxxxx XX 00000 Retail 9,100 $1,075,000 $1,074,265 000
000 Xxxxxxx XX 00000 Multifamily 106 $1,000,000 $998,892 300
156 Xxxxxx XX 00000 Multifamily 80 $1,000,000 $995,010 360
157 Xxxx XX 00000 Retail 8,150 $989,000 $987,302 360
Rem. Orig Rem. Net
Amort. Term to Term to Interest Interest Interest Calculation Monthly
# Term (1) Maturity (2) Maturity (1) (2) Rate Rate (30/360 / Actual/360) Payment (3)
------------------------------------------------------------------------------------------------------------------------------------
1 Interest Only 120 117 5.647500% 5.626300% Actual/360 $1,684,380
2 364 120 115 5.554644% 5.533444% Actual/360 $1,130,076
2a
2b
2c
2d
2e
2f
2g
2h
2i
2j
2k
2l
2m
2n
2o
2p
2q
3 Interest Only 122 119 5.768370% 5.747170% Actual/360 $862,652
4 360 120 115 5.510000% 5.488800% Actual/360 $436,544
5 360 120 120 6.330000% 6.308800% Actual/360 $391,931
9 360 120 114 5.410000% 5.388800% Actual/360 $168,647
10 360 120 120 5.150000% 5.128800% Actual/360 $139,237
12 359 121 120 5.870000% 5.848800% Actual/360 $130,068
13 360 120 117 5.860000% 5.778800% Actual/360 $122,844
13a
13b
13c
13d
13e
13f
13g
14 360 120 117 5.860000% 5.778800% Actual/360 $114,492
14a
14b
14c
14d
14e
14f
14g
15 360 120 118 5.740000% 5.718800% Actual/360 $103,471
16 360 120 115 5.430000% 5.408800% Actual/360 $91,835
17 360 120 120 5.990000% 5.968800% Actual/360 $87,441
18 360 120 119 6.550000% 6.528800% Actual/360 $89,376
19 360 120 119 6.090000% 6.068800% Actual/360 $84,749
20 360 121 120 6.090000% 6.068800% Actual/360 $82,630
21 360 120 120 6.080000% 6.058800% Actual/360 $81,937
24 360 120 119 6.240000% 6.218800% Actual/360 $76,791
25 360 121 119 5.980000% 5.908800% Actual/360 $73,587
26 360 120 118 5.900000% 5.878800% Actual/360 $71,841
27 360 121 119 5.980000% 5.908800% Actual/360 $71,792
29 360 120 120 5.790000% 5.768800% Actual/360 $67,990
30 360 120 120 6.180000% 6.158800% Actual/360 $70,896
31 360 120 119 6.070000% 6.048800% Actual/360 $68,259
32 Interest Only 122 121 6.360000% 6.328800% Actual/360 $60,184
33 300 120 120 6.420000% 6.398800% Actual/360 $74,166
34 300 60 59 6.370000% 6.348800% Actual/360 $73,382
35 355 121 116 5.280000% 5.258800% Actual/360 $60,393
36 Interest Only 120 118 6.045000% 6.023800% Actual/360 $51,075
37 360 120 119 5.950000% 5.928800% Actual/360 $58,441
40 296 120 116 7.320000% 7.298800% Actual/360 $67,277
41 Interest Only 60 50 5.290000% 5.268800% Actual/360 $41,120
42 358 120 118 5.830000% 5.748800% Actual/360 $53,569
43 360 84 79 5.920000% 5.898800% Actual/360 $53,498
45 358 122 120 5.900000% 5.878800% Actual/360 $53,382
46 297 120 117 6.870000% 6.848800% Actual/360 $60,770
48 360 122 120 6.080000% 6.058800% Actual/360 $51,055
49 360 120 120 5.790000% 5.768800% Actual/360 $49,234
50 360 120 120 6.270000% 6.248800% Actual/360 $50,380
52 296 120 116 6.030000% 6.008800% Actual/360 $52,337
53 297 119 116 5.950000% 5.928800% Actual/360 $51,300
54 360 122 121 6.230000% 6.208800% Actual/360 $48,693
55 360 120 119 5.920000% 5.898800% Actual/360 $44,819
57 360 121 119 5.850000% 5.828800% Actual/360 $44,246
59 360 120 118 5.940000% 5.908800% Actual/360 $44,082
60 360 120 120 6.130000% 6.108800% Actual/360 $43,163
61 360 120 118 5.890000% 5.868800% Actual/360 $40,882
63 300 120 119 5.920000% 5.898800% Actual/360 $44,120
65 348 121 109 5.650000% 5.578800% Actual/360 $39,252
66 358 120 118 5.800000% 5.778800% Actual/360 $36,965
67 360 120 118 5.750000% 5.728800% Actual/360 $35,014
68 299 119 118 5.592500% 5.571300% Actual/360 $37,177
70 360 120 119 5.960000% 5.928800% Actual/360 $34,028
71 360 120 114 5.620000% 5.598800% Actual/360 $32,794
72 300 120 120 6.580000% 6.558800% Actual/360 $37,412
73 360 120 119 6.280000% 6.258800% Actual/360 $33,972
75 359 120 119 6.320000% 6.298800% Actual/360 $34,059
76 360 120 119 6.540000% 6.428800% Actual/360 $34,591
77 359 120 119 6.370000% 6.348800% Actual/360 $33,765
78 358 60 58 6.480000% 6.458800% Actual/360 $34,061
79 360 121 121 6.190000% 6.168800% Actual/360 $31,998
82 360 120 119 6.240000% 6.178800% Actual/360 $31,676
83 358 120 118 5.770000% 5.748800% Actual/360 $29,242
84 356 120 116 5.780000% 5.668800% Actual/360 $29,274
85 360 121 120 5.870000% 5.758800% Actual/360 $28,083
86 343 121 104 5.340000% 5.318800% Actual/360 $26,216
87 359 120 119 6.480000% 6.458800% Actual/360 $27,690
88 360 120 119 5.990000% 5.968800% Actual/360 $26,052
89 300 120 120 6.250000% 6.228800% Actual/360 $28,696
90 360 120 119 5.570000% 5.498800% Actual/360 $24,604
91 360 122 121 6.140000% 6.118800% Actual/360 $25,865
92 360 120 112 5.490000% 5.468800% Actual/360 $23,821
93 360 121 121 6.190000% 6.168800% Actual/360 $25,207
94 360 84 84 6.340000% 6.318800% Actual/360 $25,485
95 298 120 118 6.310000% 6.288800% Actual/360 $26,535
96 359 120 119 5.990000% 5.968800% Actual/360 $23,747
97 358 120 118 6.110000% 6.088800% Actual/360 $21,839
98 360 120 119 5.670000% 5.648800% Actual/360 $20,248
99 360 120 120 6.540000% 6.518800% Actual/360 $22,170
100 295 120 115 5.830000% 5.808800% Actual/360 $21,554
101 360 121 119 6.020000% 5.998800% Actual/360 $19,948
102 360 120 115 5.720000% 5.698800% Actual/360 $19,195
103 360 120 119 5.560000% 5.488800% Actual/360 $18,576
104 360 121 119 5.680000% 5.648800% Actual/360 $18,532
105 359 120 119 6.550000% 6.528800% Actual/360 $20,332
106 359 120 119 6.000000% 5.978800% Actual/360 $19,186
107 355 121 116 5.681000% 5.659800% Actual/360 $18,534
108 360 120 119 5.560000% 5.488800% Actual/360 $18,004
109 358 120 118 6.050000% 5.988800% Actual/360 $18,987
110 360 120 119 6.520000% 6.498800% Actual/360 $19,793
111 358 122 120 5.970000% 5.948800% Actual/360 $18,646
112 295 120 115 5.880000% 5.858800% Actual/360 $19,747
113 359 120 119 6.600000% 6.578800% Actual/360 $19,479
114 360 121 119 6.000000% 5.978800% Actual/360 $17,987
115 358 120 118 6.010000% 5.988800% Actual/360 $18,006
116 349 120 109 5.150000% 5.128800% Actual/360 $16,031
117 360 120 120 6.340000% 6.318800% Actual/360 $17,379
118 360 120 119 5.560000% 5.488800% Actual/360 $15,718
119 295 120 115 5.970000% 5.948800% Actual/360 $17,347
120 360 120 118 6.050000% 6.018800% Actual/360 $15,069
121 358 120 118 6.570000% 6.548800% Actual/360 $15,917
122 358 120 118 5.940000% 5.918800% Actual/360 $14,892
123 358 120 118 5.770000% 5.748800% Actual/360 $14,329
124 360 120 120 6.390000% 6.368800% Actual/360 $15,153
125 360 120 118 6.120000% 6.098800% Actual/360 $14,575
126 360 120 120 6.240000% 6.178800% Actual/360 $14,762
127 355 120 115 5.870000% 5.848800% Actual/360 $14,189
128 356 121 117 5.550000% 5.528800% Actual/360 $13,417
129 360 122 121 6.280000% 6.218800% Actual/360 $14,206
131 360 121 120 6.030000% 5.988800% Actual/360 $13,834
132 349 120 109 5.400000% 5.378800% Actual/360 $12,775
133 360 120 116 5.720000% 5.698800% Actual/360 $12,564
134 360 120 118 5.980000% 5.918800% Actual/360 $12,564
136 358 60 58 6.780000% 6.668800% Actual/360 $12,335
137 349 120 109 5.680000% 5.658800% Actual/360 $10,656
138 360 120 120 6.540000% 6.518800% Actual/360 $11,425
139 358 122 120 6.280000% 6.258800% Actual/360 $10,914
140 358 120 118 5.960000% 5.938800% Actual/360 $10,149
141 358 122 120 6.380000% 6.358800% Actual/360 $9,987
142 178 180 178 6.190000% 6.168800% Actual/360 $13,667
143 324 120 119 6.350000% 6.328800% Actual/360 $10,175
144 360 120 119 5.560000% 5.488800% Actual/360 $8,859
146 360 120 119 6.420000% 6.398800% Actual/360 $8,525
147 359 120 119 6.580000% 6.558800% Actual/360 $8,024
148 360 120 120 6.430000% 6.408800% Actual/360 $7,843
149 358 120 118 6.300000% 6.278800% Actual/360 $7,737
150 359 120 119 6.570000% 6.548800% Actual/360 $7,640
151 322 120 118 6.300000% 6.278800% Actual/360 $7,714
152 359 84 83 6.500000% 6.478800% Actual/360 $7,048
153 359 120 119 6.700000% 6.678800% Actual/360 $6,937
155 299 120 119 6.700000% 6.678800% Actual/360 $6,878
156 355 120 115 5.870000% 5.758800% Actual/360 $5,912
157 358 120 118 6.280000% 6.258800% Actual/360 $6,109
First
Payment Maturity Letter of Ground Earthquake Environmental
# Date Date ARD (4) Lockout/Defeasance (5) Credit Lease Insurance (Y/N) Insurance (Y/N)
------------------------------------------------------------------------------------------------------------------------------------
1 4/8/2006 3/8/2016 N/A Yes $0 No N/A N/A
2 2/11/2006 1/11/2016 N/A Yes $0
2a No X/X X/X
0x Xx X/X X/X
0x Xx X/X N/A
2d No N/A N/A
2e No N/A N/A
2f No X/X X/X
0x Xx X/X X/X
0x Xx X/X X/X
0x No N/A N/A
2j No N/A N/A
2k No N/A N/A
2l No N/A N/A
2m No N/A N/A
2n No N/A N/A
2o No X/X X/X
0x Xx X/X X/X
0x Xx X/X X/X
0 4/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
4 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
5 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
9 1/11/2006 12/11/2015 N/A Yes $0 No N/A N/A
10 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
12 6/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
13 4/11/2006 3/11/2016 N/A Yes $0
13a No N/A X/X
00x Xx X/X X/X
00x Xx X/X X/X
00x No X/X X/X
00x Xx X/X X/X
00x No N/A N/A
13g No N/A N/A
14 4/11/2006 3/11/2016 N/A Yes $0
14a No N/A X/X
00x Xx X/X X/X
00x Xx X/X X/X
00x Yes X/X X/X
00x Xx X/X X/X
00x No N/A N/A
14g No N/A N/A
15 5/11/2006 4/11/2016 N/A Yes $1,600,000 No N/A N/A
16 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
17 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
18 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
19 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
20 6/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
21 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
24 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
25 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
26 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
27 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
29 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
30 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
31 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
32 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
33 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
34 6/11/2006 5/11/2011 N/A Yes $0 No N/A N/A
35 2/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
36 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
37 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
40 3/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
41 9/11/2005 8/11/2010 N/A Yes $0 No N/A N/A
42 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
43 2/11/2006 1/11/2013 N/A Yes $0 No N/A N/A
45 5/11/2006 6/11/2016 N/A Yes $400,000 No N/A N/A
46 4/11/2006 3/11/2016 N/A Yes $0 No N/A N/A
48 5/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
49 7/11/2006 6/11/2016 N/A No $0 No N/A N/A
50 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
52 3/11/2006 2/11/2031 2/11/2016 Yes $0 No N/A N/A
53 4/11/2006 2/11/2016 N/A Yes $0 Yes N/A N/A
54 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
55 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
57 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
59 5/11/2006 4/11/2016 N/A No $0 No N/A N/A
60 7/11/2006 6/11/2036 6/11/2016 Yes $0 No N/A N/A
61 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
63 6/11/2006 5/11/2016 N/A Yes $15,696 No N/A N/A
65 7/11/2005 7/11/2015 N/A No $0 No N/A N/A
66 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
67 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
68 6/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
70 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
71 1/11/2006 12/11/2015 N/A Yes $0 No N/A N/A
72 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
73 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
75 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
76 6/11/2006 5/11/2016 N/A Yes $200,000 No N/A N/A
77 6/11/2006 5/11/2016 N/A Yes $0 No n/a N/A
78 5/11/2006 4/11/2011 N/A Yes $0 No N/A N/A
79 7/11/2006 7/11/2016 N/A No $0 No N/A N/A
82 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
83 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
84 3/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
85 6/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
86 2/11/2005 2/11/2015 N/A Yes $0 No N/A N/A
87 6/11/2006 5/11/2036 5/11/2016 Yes $0 No N/A N/A
88 6/11/2006 5/11/2016 N/A Yes $0 No n/a N/A
89 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
90 6/11/2006 5/11/2016 N/A Yes $0 No n/a N/A
91 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
92 11/11/2005 10/11/2015 N/A Yes $0 No N/A N/A
93 7/11/2006 7/11/2016 N/A No $0 No N/A N/A
94 7/11/2006 6/11/2013 N/A Yes $0 No N/A N/A
95 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
96 6/11/2006 5/11/2016 N/A Yes $660,000 No N/A N/A
97 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
98 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
99 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
100 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
101 5/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
102 2/11/2006 1/11/2036 1/11/2016 Yes $0 No N/A N/A
103 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
104 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
105 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
106 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
107 2/11/2006 2/11/2016 N/A Yes $0 No N/A Yes
108 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
109 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
110 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
111 5/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
112 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
113 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
114 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
115 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
116 8/11/2005 7/11/2015 N/A Yes $0 No N/A N/A
117 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
118 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
119 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
120 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
121 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
122 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
123 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
124 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
125 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
126 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
127 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
128 3/11/2006 3/11/2016 N/A Yes $0 No N/A N/A
129 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
131 6/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
132 8/11/2005 7/11/2015 N/A Yes $0 No N/A Yes
133 3/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
134 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
136 5/11/2006 4/11/2011 N/A Yes $0 No N/A Yes
137 8/11/2005 7/11/2015 N/A Yes $0 No N/A Yes
138 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
139 5/11/2006 6/11/2016 N/A No $0 No N/A Yes
140 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
141 5/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
142 5/11/2006 4/11/2021 N/A Yes $0 No N/A Yes
143 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
144 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
146 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
147 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
148 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
149 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
150 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
151 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
152 6/11/2006 5/11/2013 N/A Yes $0 No N/A Yes
153 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
155 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
156 2/11/2006 1/11/2016 N/A Yes $0 No N/A Yes
157 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
Servicing
and
Trustee
# Fees Loan Seller
------------------------------------------------------------------------------------------------------------------------------------
1 0.021200% Column Financial, Inc.
2 0.021200% Column Financial, Inc.
2a Column Financial, Inc.
2b Column Financial, Inc.
2c Column Financial, Inc.
2d Column Financial, Inc.
2e Column Financial, Inc.
2f Column Financial, Inc.
2g Column Financial, Inc.
2h Column Financial, Inc.
2i Column Financial, Inc.
2j Column Financial, Inc.
2k Column Financial, Inc.
2l Column Financial, Inc.
2m Column Financial, Inc.
2n Column Financial, Inc.
2o Column Financial, Inc.
2p Column Financial, Inc.
2q Column Financial, Inc.
3 0.021200% Column Financial, Inc.
4 0.021200% Column Financial, Inc.
5 0.021200% Column Financial, Inc.
9 0.021200% Column Financial, Inc.
10 0.021200% Column Financial, Inc.
12 0.021200% Column Financial, Inc.
13 0.081200% Column Financial, Inc.
13a Column Financial, Inc.
13b Column Financial, Inc.
13c Column Financial, Inc.
13d Column Financial, Inc.
13e Column Financial, Inc.
13f Column Financial, Inc.
13g Column Financial, Inc.
14 0.081200% Column Financial, Inc.
14a Column Financial, Inc.
14b Column Financial, Inc.
14c Column Financial, Inc.
14d Column Financial, Inc.
14e Column Financial, Inc.
14f Column Financial, Inc.
14g Column Financial, Inc.
15 0.021200% Column Financial, Inc.
16 0.021200% Column Financial, Inc.
17 0.021200% Column Financial, Inc.
18 0.021200% Column Financial, Inc.
19 0.021200% Column Financial, Inc.
20 0.021200% Column Financial, Inc.
21 0.021200% Column Financial, Inc.
24 0.021200% Column Financial, Inc.
25 0.071200% Column Financial, Inc.
26 0.021200% Column Financial, Inc.
27 0.071200% Column Financial, Inc.
29 0.021200% Column Financial, Inc.
30 0.021200% Column Financial, Inc.
31 0.021200% Column Financial, Inc.
32 0.031200% Column Financial, Inc.
33 0.021200% Column Financial, Inc.
34 0.021200% Column Financial, Inc.
35 0.021200% Column Financial, Inc.
36 0.021200% Column Financial, Inc.
37 0.021200% Column Financial, Inc.
40 0.021200% Column Financial, Inc.
41 0.021200% Column Financial, Inc.
42 0.081200% Column Financial, Inc.
43 0.021200% Column Financial, Inc.
45 0.021200% Column Financial, Inc.
46 0.021200% Column Financial, Inc.
48 0.021200% Column Financial, Inc.
49 0.021200% Column Financial, Inc.
50 0.021200% Column Financial, Inc.
52 0.021200% Column Financial, Inc.
53 0.021200% Column Financial, Inc.
54 0.021200% Column Financial, Inc.
55 0.021200% Column Financial, Inc.
57 0.021200% Column Financial, Inc.
59 0.031200% Column Financial, Inc.
60 0.021200% Column Financial, Inc.
61 0.021200% Column Financial, Inc.
63 0.021200% Column Financial, Inc.
65 0.071200% Column Financial, Inc.
66 0.021200% Column Financial, Inc.
67 0.021200% Column Financial, Inc.
68 0.021200% Column Financial, Inc.
70 0.031200% Column Financial, Inc.
71 0.021200% Column Financial, Inc.
72 0.021200% Column Financial, Inc.
73 0.021200% Column Financial, Inc.
75 0.021200% Column Financial, Inc.
76 0.111200% Column Financial, Inc.
77 0.021200% Column Financial, Inc.
78 0.021200% Column Financial, Inc.
79 0.021200% Column Financial, Inc.
82 0.061200% Column Financial, Inc.
83 0.021200% Column Financial, Inc.
84 0.111200% Column Financial, Inc.
85 0.111200% Column Financial, Inc.
86 0.021200% Column Financial, Inc.
87 0.021200% Column Financial, Inc.
88 0.021200% Column Financial, Inc.
89 0.021200% Column Financial, Inc.
90 0.071200% Column Financial, Inc.
91 0.021200% Column Financial, Inc.
92 0.021200% Column Financial, Inc.
93 0.021200% Column Financial, Inc.
94 0.021200% Column Financial, Inc.
95 0.021200% Column Financial, Inc.
96 0.021200% Column Financial, Inc.
97 0.021200% Column Financial, Inc.
98 0.021200% Column Financial, Inc.
99 0.021200% Column Financial, Inc.
100 0.021200% Column Financial, Inc.
101 0.021200% Column Financial, Inc.
102 0.021200% Column Financial, Inc.
103 0.071200% Column Financial, Inc.
104 0.031200% Column Financial, Inc.
105 0.021200% Column Financial, Inc.
106 0.021200% Column Financial, Inc.
107 0.021200% Column Financial, Inc.
108 0.071200% Column Financial, Inc.
109 0.061200% Column Financial, Inc.
110 0.021200% Column Financial, Inc.
111 0.021200% Column Financial, Inc.
112 0.021200% Column Financial, Inc.
113 0.021200% Column Financial, Inc.
114 0.021200% Column Financial, Inc.
115 0.021200% Column Financial, Inc.
116 0.021200% Column Financial, Inc.
117 0.021200% Column Financial, Inc.
118 0.071200% Column Financial, Inc.
119 0.021200% Column Financial, Inc.
120 0.031200% Column Financial, Inc.
121 0.021200% Column Financial, Inc.
122 0.021200% Column Financial, Inc.
123 0.021200% Column Financial, Inc.
124 0.021200% Column Financial, Inc.
125 0.021200% Column Financial, Inc.
126 0.061200% Column Financial, Inc.
127 0.021200% Column Financial, Inc.
128 0.021200% Column Financial, Inc.
129 0.061200% Column Financial, Inc.
131 0.041200% Column Financial, Inc.
132 0.021200% Column Financial, Inc.
133 0.021200% Column Financial, Inc.
134 0.061200% Column Financial, Inc.
136 0.111200% Column Financial, Inc.
137 0.021200% Column Financial, Inc.
138 0.021200% Column Financial, Inc.
139 0.021200% Column Financial, Inc.
140 0.021200% Column Financial, Inc.
141 0.021200% Column Financial, Inc.
142 0.021200% Column Financial, Inc.
143 0.021200% Column Financial, Inc.
144 0.071200% Column Financial, Inc.
146 0.021200% Column Financial, Inc.
147 0.021200% Column Financial, Inc.
148 0.021200% Column Financial, Inc.
149 0.021200% Column Financial, Inc.
150 0.021200% Column Financial, Inc.
151 0.021200% Column Financial, Inc.
152 0.021200% Column Financial, Inc.
153 0.021200% Column Financial, Inc.
155 0.021200% Column Financial, Inc.
156 0.111200% Column Financial, Inc.
157 0.021200% Column Financial, Inc.
(1) Assumes a Cut-off Date in June 2006.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(3) For mortgage loans classified as interest only, the monthly payments
represent the average of one full year of interest payments. For mortgage
loans with an initial interest only term, the monthly payments represent
the principal and interest payments due after the initial interest only
term.
(4) Anticipated Repayment Date.
(5) Yes means that defeasance is permitted notwithstanding the Lockout Period.
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2006-C3
Loan Group
# # Property Name
------------------------------------------------------------------------------------------------------------------------------------
6 1 Towne Center at Xxxxx Xxxxx
0 0 Xxxxxxxxxx Xxxxx
8 1 CheckFree Corporation
11 1 Capital Center
22 1 Xxxxxx Square Galleria
23 1 Pier One at Xxxxxx Square Galleria
28 1 T-Mobile - Springfield
38 2 Long Xxxxxxx Apartments
39 1 Midwest Xxxxx Xxxxxx & Xxxxxxx Xxxxx Xxxxx
00 1 Best Western - Orange County Airport
47 1 Port Warwick I Xxxxxxx Xxxxxx Xxxxxxxx
00 0 Xxxxxxxxx Xxxxxxxxx Xxxxxx - Tempe
56 1 Xxxx Xxxx
58 1 Medical Pavillion of Treasure Coast Square
62 2 Riverbend Apartments
64 1 Los Alisos Village
69 2 Yacht Club Apartments
74 1 Harbour Bay Xxxxx
00 0 000 Xxxxx Xx
00 0 Xxxxxx Xxxx Apartments
130 2 Brookhollow Apartments
135 1 Basehor Town Square
145 2 Gardens at Xxxxxx Apartments
154 2 The Cedars Apartments
# Address City
------------------------------------------------------------------------------------------------------------------------------------
6 7275-7539 Corporate Boulevard & 7150, 7350 & 0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx
7 0000-0000 X. Xxxx Xxxxxx & 0000-0000 Telephone Road Ventura
8 0000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxxxx
11 0000 X. Xxxxxxxxx Xxxxxx Tallahassee
00 Xxx Xxxxxx Xxxxxx Xxxxxxxxx
23 One Xxxxxx Square Cambridge
28 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxxxxxxxx
38 0 Xxxxxxxx Xxxx Xxxx Xxxx
39 0000 Xxxxxxx Xxxx & 0000 Xxxxxxxxxxx Xxxx Xxx Xxxxx
44 0000 Xxxxx Xxxxxxx Xxxxx Xxxxx Xxx
47 00000 Xxxxxxxxx Xxxxxx Newport News
51 0000 Xxxx Xxxxxxxx Xxxx Tempe
56 2050 North Xxxx School Road Xxxxxxxx
58 3496 - 0000 X.X. Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
62 0000 Xxxx 00xx Xxxxxx Xxxxx
64 22900-22942 Los Alisos Boulevard Mission Viejo
69 0000 Xxxxx Xxxxxx Xxxxxx Tulsa
74 0000 XX Xxxxx Xxxxxxxxx Stuart
80 000 Xxxxx Xxxx Xxxxxxxxxxx
81 0000 Xxxxx 00xx Xxxx Xxxxxx Xxxxx
130 000 Xxxxxx Xxxxx Xxxxxx
135 00000 Xxxxx Xxxxxx Basehor
145 000 Xxxxx 00xx Xxxxxx Xxxxxx
154 000 Xxxx Xxx Xxxxxx
Xxxxx/
Xx. Ft./ Orig Rem.
Zip Property Rooms/ Original Cut-off Amort. Amort.
# County State Code Type Pads Balance Balance (1) Term Term (1)
------------------------------------------------------------------------------------------------------------------------------------
0 Xxxx Xxxxx Xxxxx Xxxxxx XX 00000, 70806 Retail 276,874 $57,000,000 $57,000,000 360 360
7 Xxxxxxx XX 00000 Retail 153,205 $36,975,000 $36,975,000 360 360
8 Xxxxxxxx XX 00000 Office 220,675 $30,000,000 $30,000,000 360 360
11 Xxxx FL 32304 Office 295,225 $25,000,000 $25,000,000 360 360
22 Xxxxxxxxx XX 00000 Retail 28,510 $8,150,000 $8,143,578 360 359
23 Xxxxxxxxx XX 00000 Retail 9,175 $4,350,000 $4,346,573 360 359
28 Xxxxxx MO 65803 Office 78,421 $12,000,000 $12,000,000 360 360
38 Xxxxxxxxxx XX 00000 Multifamily 286 $9,800,000 $9,800,000 360 360
39 Dupage IL 60523 Office 95,413 $9,800,000 $9,791,466 360 359
44 Xxxxxx XX 00000 Hotel 148 $9,000,000 $9,000,000 300 300
47 Newport News City VA 23606 Office 62,599 $8,500,000 $8,500,000 360 360
51 Maricopa AZ 85282 Office 74,731 $8,120,000 $8,120,000 360 360
56 Xxxxxxxx XX 00000 Retail 69,198 $7,500,000 $7,500,000 360 360
58 Xxxxxx FL 34957 Office 56,100 $7,445,000 $7,445,000 360 360
62 Xxxxx XX 00000 Multifamily 284 $6,900,000 $6,900,000 360 360
64 Xxxxxx XX 00000 Retail 31,401 $6,875,000 $6,875,000 360 360
69 Xxxxx XX 00000 Multifamily 376 $5,950,000 $5,950,000 360 360
74 Xxxxxx XX 00000 Retail 61,804 $5,500,000 $5,500,000 360 360
80 Cumberland ME 04074 Office 38,784 $5,200,000 $5,200,000 360 360
81 Xxxxx XX 00000 Multifamily 180 $5,200,000 $5,200,000 360 360
130 Xxxxxxxxx XX 00000 Multifamily 121 $2,300,000 $2,300,000 360 360
135 Xxxxxxxxxxx XX 00000 Retail 22,762 $2,000,000 $2,000,000 360 360
145 Xxxxxxxx OK 73533 Multifamily 90 $1,400,000 $1,400,000 360 360
154 Xxxxx XX 00000 Multifamily 96 $1,072,000 $1,072,000 360 360
Orig Rem. Net First
Term to Term to Interest Interest Interest Calculation Monthly Payment Maturity
# Maturity (2) Maturity (1) (2) Rate Rate (30/360 / Actual/360) Payment (3) Date Date
------------------------------------------------------------------------------------------------------------------------------------
6 120 115 5.850000% 5.808800% Actual/360 $336,266 2/1/2006 1/1/2016
7 121 121 6.110000% 6.068800% Actual/360 $224,305 7/1/2006 7/1/2016
8 120 120 6.180000% 6.138800% Actual/360 $183,352 7/1/2006 6/1/2016
11 120 120 6.350000% 6.278800% Actual/360 $155,559 7/1/2006 6/1/2016
22 60 59 6.190000% 6.118800% Actual/360 $49,863 6/1/2006 5/1/2011
23 60 59 6.190000% 6.118800% Actual/360 $26,614 6/1/2006 5/1/2011
28 121 121 6.080000% 6.008800% Actual/360 $72,564 7/1/2006 7/1/2016
38 120 120 6.030000% 5.988800% Actual/360 $58,945 7/1/2006 6/1/2016
39 120 119 5.810000% 5.718800% Actual/360 $57,564 6/1/2006 5/1/2016
44 120 120 6.760000% 6.618800% Actual/360 $62,239 7/1/2006 6/1/2016
47 121 121 5.760000% 5.718800% Actual/360 $49,658 7/1/2006 7/1/2016
51 120 118 5.520000% 5.458800% Actual/360 $46,206 5/1/2006 4/1/2016
56 120 120 6.240000% 6.148800% Actual/360 $46,130 7/1/2006 6/1/2016
58 121 121 6.180000% 6.138800% Actual/360 $45,502 7/1/2006 7/1/2016
62 121 121 5.950000% 5.888800% Actual/360 $41,147 7/1/2006 7/1/2016
64 120 120 6.160000% 6.088800% Actual/360 $41,929 7/1/2006 6/1/2016
69 121 121 5.950000% 5.888800% Actual/360 $35,482 7/1/2006 7/1/2016
74 121 121 6.180000% 6.108800% Actual/360 $33,614 7/1/2006 7/1/2016
80 120 120 6.460000% 6.418800% Actual/360 $32,731 7/1/2006 6/1/2016
81 121 121 5.950000% 5.888800% Actual/360 $31,010 7/1/2006 7/1/2016
130 121 121 5.950000% 5.888800% Actual/360 $13,716 7/1/2006 7/1/2016
135 121 121 6.380000% 6.338800% Actual/360 $12,484 7/1/2006 7/1/2016
145 180 180 6.900000% 6.808800% Actual/360 $9,220 7/1/2006 6/1/2021
154 121 121 5.950000% 5.888800% Actual/360 $6,393 7/1/2006 7/1/2016
Servicing
and
Letter of Ground Earthquake Environmental Trustee
# ARD (4) Lockout/Defeasance (5) Credit Lease Insurance (Y/N) Insurance (Y/N) Fees Loan Seller
------------------------------------------------------------------------------------------------------------------------------------
6 N/A Yes $0 No N/A N/A 0.041200% PNC
7 N/A Yes $0 No N/A N/A 0.041200% PNC
8 N/A Yes $0 No No N/A 0.041200% PNC
11 N/A Yes $0 No N/A N/A 0.071200% PNC
22 N/A Yes $0 No N/A N/A 0.071200% PNC
23 N/A Yes $0 No N/A N/A 0.071200% PNC
28 N/A Yes $0 No N/A N/A 0.071200% PNC
38 N/A Yes $0 No N/A N/A 0.041200% PNC
39 N/A Yes $0 No N/A N/A 0.091200% PNC
44 N/A Yes $0 No N/A N/A 0.141200% PNC
47 N/A Yes $0 No N/A N/A 0.041200% PNC
51 N/A Yes $0 No N/A N/A 0.061200% PNC
56 N/A No $0 No N/A N/A 0.091200% PNC
58 N/A Yes $0 No N/A N/A 0.041200% PNC
62 N/A No $0 No N/A N/A 0.061200% PNC
64 N/A Yes $0 No N/A Yes 0.071200% PNC
69 N/A No $0 No N/A N/A 0.061200% PNC
74 N/A Yes $0 No N/A N/A 0.071200% PNC
80 N/A Yes $0 No N/A N/A 0.041200% PNC
81 N/A No $0 No N/A N/A 0.061200% PNC
130 N/A No $0 No N/A N/A 0.061200% PNC
135 N/A Yes $0 No N/A Yes 0.041200% PNC
145 N/A No $0 No N/A Yes 0.091200% PNC
154 N/A No $0 No N/A N/A 0.061200% PNC
(1) Assumes a Cut-off Date in June 2006.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(3) For mortgage loans classified as interest only, the monthly payments
represent the average of one full year of interest payments. For mortgage
loans with an initial interest only term, the monthly payments represent
the principal and interest payments due after the initial interest only
term.
(4) Anticipated Repayment Date.
(5) Yes means that defeasance is permitted notwithstanding the Lockout Period.
EXHIBIT B-1B
SCHEDULE OF PNC MORTGAGE LOANS
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2006-C3
Loan Group
# # Property Name
------------------------------------------------------------------------------------------------------------------------------------
1 1 000 Xxxxxxxx
2 2 Xxxxxxx & Xxxxx FX 2
2a 2 Seven Gables
2b 2 Knollwood I and II
2c 2 Rollingwood
2d 0 Xxxxxxxx Xxxx
0x 0 Xxxxxxx Xxxx
0x 2 Falls on Clearwood
2g 2 Foxcroft
2h 0 Xxxxxxxxx Xxxxx
0x 0 Xxxxxxx
0x 0 Xxxxxx Oaks
2k 2 Twin Rivers
2l 2 Autumn Ridge
2m 0 Xxxxxxx Xxxxxx
0x 0 Xxxxxxxxxxx XX
0x 0 Xxxxxxxxx Xxxxx
0x 0 Xxxxxx Xxxxx
0x 0 Xxxxxxxxxx
3 1 535 and 000 Xxxxx Xxxxxx
0 0 Xxxxxx Xxxx
5 1 0000 Xxxxxx Xxxxxx
9 1 Marriott Milwaukee West
00 0 Xxxxxxxx Xxxxxxxxxxx
00 0 UA Sheepshead Bay 14
13 1 Spectra - Pool 2
13a 1 Spectra Retail - Shawnee, OK
13b 1 Spectra Retail - Durant, OK
00x 0 Xxxxxxx Xxxxxx - Xxxxxxx, XX
00x 1 Spectra Retail - Boaz, AL
13e 1 Spectra Retail - West Burlington, IA
13f 1 Spectra Retail - Shelbyville, IN
13g 1 Spectra Retail - Perry, FL
14 1 Spectra - Pool 3
14a 1 Spectra Retail - Plainview, TX
14b 1 Spectra Retail - Belton, TX
00x 0 Xxxxxxx Xxxxxx - Xxxxxx, XX
00x 1 Spectra Retail - Pulaski, TN
14e 1 Spectra Retail - Newton, IA
14f 1 Spectra Retail - Oskaloosa, IA
14g 1 Spectra Retail - Wauseon, OH
15 2 Bexley at Xxxxxxxx Xxxxxxxxxx
00 0 Xxxxxxxxx Xxxx and Shopping Center
17 1 Residence Inn Chesapeake Greenbrier
18 1 Hilton Garden Inn Houston
19 0 Xxxxx Xxxxxx Shopping Center
20 0 Xxx Xxxx Xxxxxx Xxxxxxxxxx
00 0 Xxxx Center Office Xxxxxxxx
00 0 Xxxxxxxxx Xxxxx
00 0 Xxxxxxxxxx Xxxxxx
26 2 Crystal Lake Apartments
00 0 Xxxxxx Xxxxx
00 0 Forum Apartments
30 1 Home Depot Call Center
31 1 Xxxx Xxxx Isle Professional Center
32 1 Hennepin Business Center
33 1 Best Western Movieland
34 1 Best Xxxxxxx Xxxxxxxxxx Xxxxxx
00 0 Xxxxxxxxx Xxxx Square
36 1 Bradhurst Court
37 2 Amesbury at Deerfield
40 1 Independence Village of Grand Ledge
41 1 Tech Center VI
42 1 4901, 4931 and 0000 Xxxxx Xxxxx
00 0 Xxxxxxxxxx Xxxxxxxxxx
00 0 Xxxxxx Bonanza
46 1 Brighter
48 1 Willowbrook Shopping Center I and XX
00 0 Xxxxxxx Xxxxxx
00 0 0000 Xxxxxxx Office Center
52 1 Best Western Orlando
53 1 Four Points Sheraton
54 1 River Commons
55 1 Noble Creek Shops
57 2 Lakeview Apartments
59 2 Briar Club Apartments
60 1 MacArthur Plaza I and II
61 2 Biltmore Park
00 0 Xxxxxxxxx Xxxxxxxxxxx
00 0 Palms to Pines
66 1 Aerospace Xxxxx Xxxxxx Xxxxxx
00 0 Xxxxxxxxxx Xxxxxx Shopping Center
68 1 Milford Stop and Shop Shopping Center
70 1 Xxxxx xx Xxxxxxx
00 0 Xxxxxxxxxxx Xxxxx Xxxxxx Xxxx
00 0 Comfort Suites Visalia
73 2 Eagle Creek Apartments
75 1 723 Main
76 1 Manatee Village
77 1 Redwood and Xxxxxxxx
00 0 000 Xxxxx Xxxxxx
79 0 Xxxx Xxxxxxx Apartments
82 1 Block Y Retail Condo
83 1 Lincoln Business Center
84 2 Twin Oaks Mobile Home Park
00 0 Xxxxxxxxx Xxxxx Xxxxxxxxxx
00 0 Xxx Xxxxx Xxxxxxxxxx
00 0 Xxx Xxxxxx Professional Center
88 1 Bellevue Plaza
89 1 Hampton Inn Sterling Heights
90 1 Roosevelt Center
91 1 Xxxxxx Xxxxxx Shoppes
92 0 Xxxxx Xxxxx xx Xxxxxx Xxxxx
93 2 Oxon Park Apartments
94 2 Westwinds Mobile Home Park
95 1 Comfort Suites Arena
96 1 Creekstone Xxxxxxx Xxxxxxxx Xxxxxx
00 0 Xxxxxxxxx Xxxxxxx Mobile Home Park
98 1 Pecos Trail Office (Phase II)
99 1 University
100 1 Fairfield Inn Columbia
101 1 0000 Xxxxxxx Xxxxxxxxx
102 1 Cottonwood Medical Center
103 1 Fountain Valley Self Storage
104 2 Casa Espana/Casa Royale
105 1 000 Xxxxxxxxxxxxx Xxxxxx
106 1 Wolf Creek Xxxxxx
000 0 000 Xxxxx Xxxxxxxx Xxxxxx
000 0 Pasadena Self Storage
109 1 Sweetwater Crossing
110 1 Weatherstone Promenade
111 1 Village at Xxxxxxxx Mill
112 1 Hampton Inn Havelock
113 1 Village Commons I and II
114 1 International Shops
115 1 Sunnymead Shopping Center
116 2 Hampton House Villas
117 1 00000 Xxxxxxxxx Xxxxx
118 1 San Xxxx Capistrano Self Storage
119 1 Hartford Self Storage
120 1 401 East Ontario
121 1 Airport Discount Storage
122 2 Royal Arms Apartments
123 1 Xxxxxxx and Xxxx Business Park
124 1 Portland Shopping Xxxxxx
000 0 Xxxxxxx Xxxxxxxxxx
000 0 Xxxxxxx Xxxxxx Shopping Center
127 1 2074 Park Street
128 2 Hilltop Manor Apartments
129 1 79 Shops
131 1 Desert Bloom Plaza
132 1 000 Xxxx 00xx Xxxxxx
133 0 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
000 0 Xxxxxxx Retail
136 1 Vietnamese Center
137 1 Jefferson Highway Retail
138 1 Slide Retail
139 1 Madison Marketplace
140 1 Scatterfield Shoppes
141 1 Bluffton Towne Center
142 1 Poway Garden Self Storage
143 0 Xxxxxxx Xxxxxx Shopping Center
144 1 Xxxxxxx Center
146 2 Covered Oaks Mobile Home Park
000 0 0000 Xxxxx Xxxxxx Xxxxxx Office Building
148 1 Hopewell Medical Building
149 0 Xxxxxx Xxxx Mobile Home Park
150 1 Lockfield Shoppes Retail
151 1 West Little York
152 1 Martinview Mobile Home Park
153 1 Big Bear Xxxxxx Xxxxxxxx
000 0 Xxxxxxx Xxxxxx Xxxxxxx
156 2 Keoway Village Apartments
157 1 West Seattle Retail
# Address City
------------------------------------------------------------------------------------------------------------------------------------
1 000 Xxxxxxxx Xxx Xxxx
2
0x 00 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
0x 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx
0x 0000 Xxxxxx Xxxxxx Xxxxxxxx
0x 00000 Xxxx Xxxxxxxxx Xxxxxxx
0x 0000 Xxxxxxxxx Xxxxx Xxxxxxxx
0x 000 Xxxxxxxxx Xxxxx Xxxxxxxxxx
0x 0000 Xxxxx Xxxx Xxxxx Highway Tampa
2h 10901 Meadowglen Lane Houston
2i 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxx
0x 000 Xxxxx Xxxx Xxxx Xxxxxx
2k 600 Xxxxxxx Xxxxxxxxx Drive Hopewell
2l 199 Wind Road Greensboro
2m 0000 Xxxxxxxx Xxxxx Xxxxxxxxx
0x 0000 Xxxxxxx Xxxxx Xxxxxxxx
0x 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx
0x 13500 Xxxxxxx Xxxxxx Xxxxx
0x 0000 Xxxxxxxxxx Xxxx Macon
3 535 and 000 Xxxxx Xxxxxx Xxx Xxxx
4 00 Xxxxxx Xxxxx Xxxxxxx
5 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
9 West 231 North 1600 Corporate Court Waukesha
10 800-888 New Los Angeles Xxxxxx Xxxxxxxx
00 0000 Xxxxx Parkway Brooklyn
13
13a 0000 Xxxxx Xxxxx Xxxxxx Shawnee
13b 000 Xxxxxxxxxx Xxxxx Xxxxxx
13c 0000 Xxxx Xxxxxx Zachary
13d 0000-0000 Xxxxxxx 000 Xxxx
00x 000 Xxxx Xxxxxx Xxxx Xxxx Xxxxxxxxxx
13f 000 Xxx Xxxxxxxxx Xxxxxxxxxxx
13g 0000-0000 Xxxxx Xxxxxxxxx Xxxxxx Perry
14
14a 0000 Xxxxxx Xxxxxx Xxxxxxxxx
00x 000-000 Xxxxxx Xxxx Xxxxxx
14c 123-161 Minden Shopping Drive Minden
14d 0000 Xxxx Xxxxxxx Xxxxxx Pulaski
14e 000-000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxx
00x 000 Xxxxxxxxxxx Xxxxx Xxxxxxxxx
00x 000-000 Xxxx Xxxxxxx Xxxxxxx Xxxxxxx
00 12825 Vinings Creek Drive Xxxxxxxx
00 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx
17 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx
18 00000 Xxxx X. Xxxxxxx Xxxxxxxxx Xxxxxxx
19 0000-0000 Xxxxx XxXxxxxxxx Xxxxx and 0000-0000 Xxxx Xxxxxxxxx Xxxx Tempe
20 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx Xxxxxxxx
21 0000 Xxxxxx Xxxxxxx Xxxxxx
24 1701-1877 East Daily Drive Camarillo
25 00000 Xxxxxxxxxx Xxxxx Xxxxx Xxxx Xxxxx
26 0000 Xxxxxxx 00 Xxxx Pensacola
27 0000 Xxxx Xxxxx Xxxx Xxxx Xxxxx
29 000 Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx
30 00000 Xxxxxxx Xxxx Addison
31 10311 Cross Creek Boulevard Tampa
00 000-000 and 0000-0000 00xx Xxxxxx Southeast Minneapolis
33 0000 Xxxxxxxxxxxxx Xxxxx Xxxxxxx
34 000 Xxxx 00xx Xxxxxx Xxx Xxxx
35 00-00 Xxxx Xxxx Xxxx and 0000-0000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx Heights
36 000 Xxxx 000xx Xxxxxx Xxx Xxxx Xxxx
37 0000 Xxxxxxxx Xxxxxx San Antonio
40 4775 Village Drive Grand Ledge
41 5575 Tech Center Drive Colorado Springs
42 4901, 4931 and 0000 Xxxxx Xxxxx Bowie
43 0000 Xxxxxxxxxx Xxxxx Grapevine
45 0000-0000 Xxxx Xxxxxxx Xxxx and 000-000 Xxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxx
46 0000 Xxxxx Xxxxx Xxxxxxxx
48 17685, 17695, 00000-00000 Xxxxx Xxxxxxx 000 and 0000 Xxxx XX 0000 Xxxxxxx
49 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx
50 0000 Xxxxxxx Xxxx Xxxxxxxxx
52 0000 Xxxx Xxxx Xxxxxx Kissimmee
53 00000 Xxxxx Xxxxx Xxxxxxx Xxxx Xxxxxxx
54 0000 Xxxxxxx Xxxxx Xxx Xxxxxxx
55 0000-0000 Xxxxxxxx Xxxxxx Noblesville
57 0000 Xxxxxx X. Xxxxx Xxxxxxxxxx Xxxxx City
59 0000 Xxxxx Xxxxx Xxxx Memphis
60 0000 Xxxxx Xxxxx Xxxx Cabin Xxxx
61 1111 Vista Valet San Antonio
63 17417-17445 Xxxxx Road Westfield
65 72755-72795 Highway 111 and 72740-72780 Xx Xxxxx Xxxxx Xxxx Xxxxxx
00 0000 Xxxxxxxxx Xxxx Xxxxxx
67 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxx
68 000 Xxxxxx Xxxxxx Xxxxxxx
70 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxxx
71 3951 and 00000 Xxxxxxxx Xxxxxxx Xxxx Xxxxx
72 000 Xxxx Xxxxxxx Xxxxxx Visalia
73 0000 Xxxxx Xxx Xxxxxx Xxxxxx
75 000 Xxxx Xxxxxx Xxxxxxx
76 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx
77 0000-0000 Xxxxxxxx Xxxxxx Vallejo
78 000 Xxxxx Xxxxxx Xxxxxxxxxxx
79 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx
82 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
83 000 Xxxxx Xxxxxxx Xxxxxx and 000 Xxx Xxxxxx Xxxxxx
84 0000 Xxxxxxxx Xxxxxxx Mableton
85 000 Xxxxx Xxxx Xxxxxxx
86 0000 Xxxxxxx Xxxxxx Xxxxxxx
87 4602, 4610 and 0000 Xxxx Xxxxxxxxxx Xxx Xxxxxxx
88 2770 and 0000 Xxxxx Xxxxx Xxxx Xxxxx Xxxx
89 00000 Xxx Xxxx Xxxxxx Xxxxxxxx Xxxxxxx
90 0000-0000 Xxxxxxxxx Xxxxxx Carlsbad
91 0000 Xxxxxxxxx Xxxxx Xxxxxxxx Beach
92 0000 Xxxxx 00xx Xxxxxx Temple
93 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx
94 000 Xxxxxxxx Xxxxxx Cheyenne
95 0000 Xxxxxxxxx Xxxxx Xxx Raleigh
96 00000 Xxxxxxx 00 Xxxxxxxxx
97 0000 Xxxxx Xxxxxx Xxxxxx St. Helens
98 1800 and 0000 Xxx Xxxxx Xxxxx Xxxxx Xx
99 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx
100 000 Xxxxxxxxxx Xxxxx Xxxxxxxx
101 0000 Xxxxxxx Xxxxxxxxx Xxx Xxxxxxx
102 0000 Xxxxxxx Xxxxxxxxx Xxxxxx
103 00000 Xxxxxx Xxxxxx Fountain Valley
104 0000 Xxxxx Xxxx Xxxxxx and 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx
105 000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxxxxx
106 00 Xxxx Xxxxx Xxxxx Swansea
107 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx Manor
108 0000 Xxxxxx Xxxxxx Xxxxxxxx
109 0000-0000 Xxxxxxx 00 Xxxxx Xxxx Xxxxx
110 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx
111 0000 Xxxxxxxxx Xxxxxxx Xxxxxx
000 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxx
113 000 Xxxxx Xxxxx Xxxx 000 and 0000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxxxxx
114 0000 Xxxxxxxx Xxxxxx Xx Jolla
115 24541-24565 and 24641-24661 Alessandro Xxxxxxxxx Xxxxxx Xxxxxx
000 0000 Xxxxx Xxxxx Xxxxx Essexville
117 00000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxx
118 26411 Xxx Xx Xxxx Xxx Xxxx Xxxxxxxxxx
000 0000 Xxxx Street Hartford
120 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
121 1004 North Xxxxxxxx Boulevard Kissimmee
122 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxx
000 00000 and 00000 Xxxxxxx Xxxxxx Huntington Beach
124 0000 XX Xxxxxxx 000 Xxxxxxxx
125 17525-17535 Madison Avenue Lakewood
126 19325-19371 South Xxxxx Highway Miami
127 0000-0000 Xxxx Xxxxxx Hartford
128 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
129 0000 Xxxxxxxxx 00 Xxxxxx Xxxxx
131 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxx Xxxxx
132 000 Xxxx 00xx Xxxxxx Xxx Xxxx
133 0000-0000 Xxxxxxx 00 Xxxxx Xxxxxxxx
134 000 00xx Xxxxxx Xxxxxx
136 0000 Xxxxxx Xxxxxxx Xxxxxxxx
137 0000 Xxxxxxxxx Xxxxxxx Xxx Xxxxxxx
138 10101 Slide Road Lubbock
139 00000 Xxxxxxx Xxxxxx Murrieta
140 0000-0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx
000 00 Xx. Xxxxxxxxxx Xxxxx Xxxxxxxx
142 00000 Xxxxxx Xxxx Poway
143 9801 West Markham Street Little Rock
144 0000-0000 Xxxx Xxxxxxx Xxxxxx Santa Xxx
146 0000 Xxxxxxxxxxx Xxxxx Xxxxxx
147 0000 Xxxxx Xxxxxx Xxxxxx Campbell
148 0000 Xxxxx Xxxxx Xxxxxxxx
149 0000 00xx Xxxxxx Xxxxx Xxxxxx
150 000 Xxxx 00xx Xxxxxx Xxxxxxxxxxxx
000 00000 and 00000 Xxxx Xxxxxx Xxxx Xxxx Katy
152 2007 Xxxx Road Bellevue
153 40794 Village Drive Big Bear Lake
155 000 Xxxxxx Xxxx Xxxxxx Xxxxxxx Island
156 50 Keoway Drive Seneca
157 0000-0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
Xxxxx/
Xx. Ft./ Orig
Zip Property Rooms/ Original Cut-off Amort.
# County State Code Type Pads Balance Balance (1) Term
------------------------------------------------------------------------------------------------------------------------------------
1 Xxx Xxxx XX 00000 Office 1,046,634 $353,000,000 $353,000,000 Interest Only
2 $198,599,584 $198,599,584 000
0x Xxxxxxx XX 00000 Multifamily 1,184 $50,885,110 $50,885,110
2b Xxxxx Xxxxx XX 00000 Multifamily 608 $25,432,961 $25,432,961
2c Xxxxxxxxxxxx XX 00000 Multifamily 278 $13,114,275 $13,114,275
2d Xxxxxx XX 00000 Multifamily 354 $12,072,005 $12,072,005
2e Xxxxxx XX 00000 Multifamily 260 $11,000,337 $11,000,337
2f Xxxxxx XX 00000 Multifamily 236 $10,546,965 $10,546,965
2g Xxxxxxxxxxxx XX 00000 Multifamily 192 $10,282,006 $10,282,006
2h Xxxxxx XX 00000 Multifamily 336 $10,090,497 $10,090,497
2i Xxxxxxx XX 00000 Multifamily 238 $9,617,917 $9,617,917
2j Xxxxxxxxx XX 00000 Multifamily 240 $6,777,151 $6,777,151
2k Xxxxxxxx Xxxx XX 00000 Multifamily 149 $6,176,782 $6,176,782
2l Xxxxxxxx XX 00000 Multifamily 276 $6,109,093 $6,109,093
2m Xxxxxxxxxxx XX 00000 Multifamily 200 $5,821,077 $5,821,077
2n Xxxxxxxx Xxxx XX 00000 Multifamily 160 $5,749,790 $5,749,790
2o Xxxxxx XX 00000 Multifamily 226 $5,525,106 $5,525,106
2p Xxxxxxxx XX 00000 Multifamily 104 $5,429,173 $5,429,173
2q Xxxx XX 00000 Multifamily 104 $3,969,339 $3,969,339
3 Xxx Xxxx XX 00000 Office 498,769 $177,000,000 $177,000,000 Xxxxxxxx Xxxx
0 Xxxxxxxxx XX 00000 Office 620,642 $76,800,000 $76,800,000 360
5 Xxxxxxxxxxxx XX 00000 Office 456,922 $63,120,000 $63,120,000 360
9 Xxxxxxxx XX 00000 Hotel 282 $30,000,000 $30,000,000 360
10 Xxxxxxx XX 00000 Retail 207,300 $25,500,000 $25,500,000 360
12 Xxxxx XX 00000 Retail 78,324 $22,000,000 $21,981,136 360
13 $20,800,574 $20,800,574 360
13a Xxxxxxxxxxxx XX 00000 Retail 35,640 $3,920,000 $3,920,000
13b Xxxxx XX 00000 Retail 32,200 $3,573,434 $3,573,434
00x Xxxx Xxxxx Xxxxx XX 00000 Retail 29,600 $3,360,000 $3,360,000
13d Xxxxxxxx XX 00000 Retail 27,900 $3,104,032 $3,104,032
13e Xxx Xxxxxx XX 00000 Retail 26,100 $2,912,000 $2,912,000
13f Xxxxxx XX 00000 Retail 14,150 $2,000,391 $2,000,391
13g Xxxxxx XX 00000 Retail 14,900 $1,930,717 $1,930,717
14 $19,386,345 $19,386,345 360
14a Xxxx TX 79072 Retail 31,720 $4,407,509 $4,407,509
14b Xxxx XX 00000 Retail 28,060 $3,760,000 $3,760,000
14c Xxxxxxx XX 00000 Retail 27,300 $3,120,000 $3,120,000
14d Xxxxx XX 00000 Retail 28,100 $2,543,728 $2,543,728
14e Xxxxxx XX 00000 Retail 20,300 $2,080,000 $2,080,000
14f Xxxxxxx XX 00000 Retail 20,700 $1,872,043 $1,872,043
14g Xxxxxx XX 00000 Retail 13,100 $1,603,065 $1,603,065
15 Xxxxxxxxxxx XX 00000 Multifamily 240 $17,750,000 $17,750,000 360
16 Xxxxxx XX 00000 Retail 225,160 $16,300,000 $16,300,000 360
17 Xxxxxxxxxx Xxxx XX 00000 Hotel 121 $14,600,000 $14,600,000 360
18 Xxxxxx XX 00000 Hotel 182 $14,067,000 $14,067,000 360
19 Xxxxxxxx XX 00000 Retail 105,180 $14,000,000 $14,000,000 360
20 Xxxx XX 00000 Multifamily 344 $13,650,000 $13,650,000 360
21 Xxxxxxx XX 00000 Office 55,283 $13,550,000 $13,550,000 360
24 Xxxxxxx XX 00000 Retail 74,026 $12,485,000 $12,485,000 360
25 Xxxx Xxxxx XX 00000 Retail 161,755 $12,300,000 $12,300,000 360
26 Escambia FL 32506 Multifamily 224 $12,112,000 $12,112,000 360
27 Xxxx Xxxxx XX 00000 Retail 165,747 $12,000,000 $12,000,000 360
29 Xxxxxxxx XX 00000 Multifamily 394 $11,600,000 $11,600,000 360
30 Xxxxxx XX 00000 Office 137,992 $11,600,000 $11,600,000 360
31 Xxxxxxxxxxxx XX 00000 Mixed Use 79,770 $11,300,000 $11,300,000 360
32 Hennepin MN 55414 Office 140,063 $11,200,000 $11,200,000 Xxxxxxxx Xxxx
00 Xxxxxx XX 00000 Hotel 261 $11,066,000 $11,066,000 300
34 Xxx Xxxx XX 00000 Hotel 83 $11,000,000 $11,000,000 300
35 Xxxx XX 00000 Retail 90,826 $10,900,000 $10,838,877 360
36 Xxx Xxxx XX 00000 Retail 84,442 $10,000,000 $10,000,000 Xxxxxxxx Xxxx
00 Xxxxx XX 00000 Multifamily 284 $9,800,000 $9,800,000 360
40 Xxxxx XX 00000 Healthcare 126 $9,250,000 $9,206,135 300
41 Xx Xxxx XX 00000 Office 104,439 $9,200,000 $9,200,000 Interest Only
00 Xxxxxx Xxxxxxx XX 00000 Industrial 83,680 $9,100,000 $9,082,711 360
43 Xxxxxxx XX 00000 Multifamily 376 $9,000,000 $9,000,000 360
45 Xxxxx XX 00000 Retail 80,963 $9,000,000 $8,983,164 360
46 Xxxxxxxx Xxxx XX 00000 Healthcare 94 $8,700,000 $8,670,259 300
48 Xxxxxx XX 00000 Retail 36,804 $8,443,000 $8,443,000 360
49 Xxxxxxxx XX 00000 Multifamily 294 $8,400,000 $8,400,000 360
50 Xxxxxxx XX 00000 Office 59,981 $8,165,000 $8,165,000 360
52 Xxxxxxx XX 00000 Hotel 223 $8,100,000 $8,053,074 300
53 Xxxxxxxx XX 00000 Hotel 284 $8,000,000 $7,967,581 300
54 Xxxxxxx XX 00000 Retail 59,235 $7,925,000 $7,925,000 360
55 Xxxxxxxx XX 00000 Mixed Use 82,966 $7,540,000 $7,540,000 360
57 Xxxxxxxxx XX 00000 Multifamily 304 $7,500,000 $7,500,000 360
59 Xxxxxx XX 00000 Multifamily 272 $7,400,000 $7,400,000 360
60 Xxxxxxxxxx XX 00000 Mixed Use 43,114 $7,100,000 $7,100,000 360
61 Xxxxx XX 00000 Multifamily 264 $6,900,000 $6,900,000 360
63 Xxxxxxxx XX 00000 Retail 40,600 $6,900,000 $6,900,000 300
65 Xxxxxxxxx XX 00000 Retail 44,099 $6,800,000 $6,716,359 360
66 Xxxxxx Xxxxxxx XX 00000 Retail 24,332 $6,300,000 $6,287,952 360
67 Xxxx XX 00000 Retail 67,766 $6,000,000 $6,000,000 360
68 Xxxxxxxxxxxx XX 00000 Retail 77,830 $6,000,000 $5,991,717 300
70 Dupage IL 60106 Retail 37,775 $5,700,000 $5,700,000 360
71 Henrico VA 23060 Office 46,077 $5,700,000 $5,700,000 360
72 Tulare CA 93291 Hotel 72 $5,500,000 $5,500,000 300
73 Xxxxxxxx XX 00000 Multifamily 114 $5,500,000 $5,500,000 360
75 Xxxxxx XX 00000 Office 92,277 $5,491,000 $5,486,824 360
76 Xxxxxxxx XX 00000 Retail 103,738 $5,450,000 $5,450,000 000
00 Xxxxxx XX 00000 Retail 23,334 $5,415,000 $5,410,938 360
78 Xxxxxxxx XX 00000 Retail 68,295 $5,400,000 $5,391,143 360
79 Xxxxxx Xxxxxxx XX 00000 Multifamily 228 $5,230,000 $5,230,000 360
82 Xxxx XX 00000 Retail 27,187 $5,150,000 $5,150,000 360
83 Xxxxxxxxx XX 00000 Mixed Use 57,078 $5,000,000 $4,990,374 360
84 Xxxx XX 00000 Multifamily 146 $5,000,000 $4,979,068 360
85 Xxxxxxx XX 00000 Multifamily 228 $4,750,000 $4,750,000 360
86 Xxxxxx XX 00000 Multifamily 162 $4,700,000 $4,610,875 360
87 Bexar TX 78222 Office 29,080 $4,390,000 $4,386,806 360
88 Xxxxxx XX 00000 Mixed Use 21,230 $4,350,000 $4,350,000 360
89 Xxxxxx XX 00000 Hotel 76 $4,350,000 $4,350,000 300
90 Xxx Xxxxx XX 00000 Mixed Use 38,488 $4,300,000 $4,300,000 360
91 Xxxxxxxx Xxxxx XX 00000 Retail 30,000 $4,250,000 $4,250,000 360
92 Xxxx XX 00000 Multifamily 176 $4,200,000 $4,200,000 360
93 Xxxxxx Xxxxxxx XX 00000 Multifamily 162 $4,120,000 $4,120,000 360
94 Xxxxxxx XX 00000 Multifamily 295 $4,100,000 $4,100,000 360
95 Xxxx XX 00000 Hotel 82 $4,000,000 $3,989,667 000
00 Xx. Xxxxxxx XX 00000 Retail 19,963 $3,965,000 $3,961,705 360
97 Xxxxxxxx XX 00000 Multifamily 132 $3,600,000 $3,593,574 000
00 Xxxxx Xx XX 00000 Office 32,354 $3,500,000 $3,500,000 360
99 Xxxxxxx XX 00000 Retail 32,000 $3,493,000 $3,493,000 360
100 Xxxxxxxxx XX 00000 Hotel 84 $3,400,000 $3,375,121 300
101 Xxx Xxxxxxx XX 00000 Retail 8,056 $3,320,000 $3,320,000 360
102 Xxxx Xxxx XX 00000 Office 30,401 $3,300,000 $3,300,000 360
103 Xxxxxx XX 00000 Self Storage 89,653 $3,250,000 $3,250,000 360
104 Pima AZ 85719 Multifamily 223 $3,200,000 $3,200,000 360
105 Xxxxxx XX 00000 Office 18,000 $3,200,000 $3,197,717 000
000 Xxxxx Xxxxx XX 00000 Office 19,638 $3,200,000 $3,197,348 360
107 Xxxxxxxxxxx XX 00000 Office 23,300 $3,200,000 $3,183,417 360
108 Xxx Xxxxxxx XX 00000 Self Storage 62,732 $3,150,000 $3,150,000 000
000 Xxxx XX 00000 Retail 28,655 $3,150,000 $3,144,301 000
000 Xxxxxxxx XX 00000 Retail 17,254 $3,125,000 $3,125,000 360
111 Xxxxxxxx XX 00000 Retail 11,649 $3,120,000 $3,114,254 000
000 Xxxxxx XX 00000 Hotel 60 $3,100,000 $3,077,496 300
113 Xxxxxxx IN 46142 Retail 22,632 $3,050,000 $3,047,855 000
000 Xxx Xxxxx XX 00000 Retail 7,213 $3,000,000 $3,000,000 000
000 Xxxxxxxxx XX 00000 Retail 28,703 $3,000,000 $2,994,524 000
000 Xxx XX 00000 Multifamily 150 $2,936,000 $2,899,586 360
117 Xxx Xxxxxxx XX 00000 Office 17,168 $2,796,000 $2,796,000 360
118 Xxxxxx XX 00000 Self Storage 58,523 $2,750,000 $2,750,000 360
119 Xxxxxxxx XX 00000 Self Storage 42,052 $2,700,000 $2,680,678 300
120 Xxxx XX 00000 Retail 7,102 $2,500,000 $2,500,000 360
121 Xxxxxxx XX 00000 Self Storage 80,053 $2,500,000 $2,495,985 360
122 Xxxx XX 00000 Multifamily 60 $2,500,000 $2,495,365 360
123 Xxxxxx XX 00000 Industrial 34,320 $2,450,000 $2,445,284 000
000 Xxx Xxxxxxxx XX 00000 Retail 12,024 $2,425,000 $2,425,000 360
125 Xxxxxxxx XX 00000 Multifamily 72 $2,400,000 $2,400,000 360
126 Xxxxx-Xxxx XX 00000 Retail 25,475 $2,400,000 $2,400,000 360
127 Xxxxxxxx XX 00000 Mixed Use 41,815 $2,400,000 $2,388,023 360
128 Xxxxxx Xxxxxx'x XX 00000 Multifamily 149 $2,350,000 $2,339,728 360
129 Xxxxx-Xxxx XX 00000 Retail 24,977 $2,300,000 $2,300,000 000
000 Xxxxx XX 00000 Retail 12,152 $2,300,000 $2,300,000 360
132 Xxx Xxxx XX 00000 Mixed Use 7,000 $2,275,000 $2,248,200 000
000 Xxxxxxx XX 00000 Retail 12,600 $2,160,000 $2,160,000 360
134 Xxxxxx XX 00000 Retail 8,730 $2,100,000 $2,100,000 000
000 Xxxxxx XX 00000 Retail 14,600 $1,896,000 $1,893,102 000
000 Xxxxxxxxx XX 00000 Retail 27,750 $1,840,000 $1,819,561 000
000 Xxxxxxx XX 00000 Retail 24,800 $1,800,000 $1,800,000 360
139 Xxxxxxxxx XX 00000 Retail 5,295 $1,767,000 $1,763,965 000
000 Xxxxxxx XX 00000 Retail 9,000 $1,700,000 $1,696,862 360
141 Xxxxxxxx XX 00000 Retail 14,763 $1,600,000 $1,597,314 000
000 Xxx Xxxxx XX 00000 Self Storage 51,693 $1,600,000 $1,589,420 180
143 Pulaski AR 72205 Retail 31,263 $1,575,000 $1,575,000 324
144 Xxxxxx XX 00000 Mixed Use 52,422 $1,550,000 $1,550,000 360
146 Xxxxx XX 00000 Multifamily 51 $1,360,000 $1,360,000 000
000 Xxxxx Xxxxx XX 00000 Office 9,747 $1,259,000 $1,258,110 360
148 Xxxxxxxx Xxxx XX 00000 Office 12,550 $1,250,000 $1,250,000 360
149 Xxxxxx XX 00000 Multifamily 37 $1,250,000 $1,247,863 360
150 Marion IN 46202 Retail 6,240 $1,200,000 $1,199,149 000
000 Xxxxxx XX 00000 Industrial 42,300 $1,200,000 $1,197,374 324
152 Xxxxx XX 00000 Multifamily 112 $1,115,000 $1,114,193 360
000 Xxx Xxxxxxxxxx XX 00000 Retail 9,100 $1,075,000 $1,074,265 000
000 Xxxxxxx XX 00000 Multifamily 106 $1,000,000 $998,892 300
156 Xxxxxx XX 00000 Multifamily 80 $1,000,000 $995,010 360
157 Xxxx XX 00000 Retail 8,150 $989,000 $987,302 360
Rem. Orig Rem. Net
Amort. Term to Term to Interest Interest Interest Calculation Monthly
# Term (1) Maturity (2) Maturity (1) (2) Rate Rate (30/360 / Actual/360) Payment (3)
------------------------------------------------------------------------------------------------------------------------------------
1 Interest Only 120 117 5.647500% 5.626300% Actual/360 $1,684,380
2 364 120 115 5.554644% 5.533444% Actual/360 $1,130,076
2a
2b
2c
2d
2e
2f
2g
2h
2i
2j
2k
2l
2m
2n
2o
2p
2q
3 Interest Only 122 119 5.768370% 5.747170% Actual/360 $862,652
4 360 120 115 5.510000% 5.488800% Actual/360 $436,544
5 360 120 120 6.330000% 6.308800% Actual/360 $391,931
9 360 120 114 5.410000% 5.388800% Actual/360 $168,647
10 360 120 120 5.150000% 5.128800% Actual/360 $139,237
12 359 121 120 5.870000% 5.848800% Actual/360 $130,068
13 360 120 117 5.860000% 5.778800% Actual/360 $122,844
13a
13b
13c
13d
13e
13f
13g
14 360 120 117 5.860000% 5.778800% Actual/360 $114,492
14a
14b
14c
14d
14e
14f
14g
15 360 120 118 5.740000% 5.718800% Actual/360 $103,471
16 360 120 115 5.430000% 5.408800% Actual/360 $91,835
17 360 120 120 5.990000% 5.968800% Actual/360 $87,441
18 360 120 119 6.550000% 6.528800% Actual/360 $89,376
19 360 120 119 6.090000% 6.068800% Actual/360 $84,749
20 360 121 120 6.090000% 6.068800% Actual/360 $82,630
21 360 120 120 6.080000% 6.058800% Actual/360 $81,937
24 360 120 119 6.240000% 6.218800% Actual/360 $76,791
25 360 121 119 5.980000% 5.908800% Actual/360 $73,587
26 360 120 118 5.900000% 5.878800% Actual/360 $71,841
27 360 121 119 5.980000% 5.908800% Actual/360 $71,792
29 360 120 120 5.790000% 5.768800% Actual/360 $67,990
30 360 120 120 6.180000% 6.158800% Actual/360 $70,896
31 360 120 119 6.070000% 6.048800% Actual/360 $68,259
32 Interest Only 122 121 6.360000% 6.328800% Actual/360 $60,184
33 300 120 120 6.420000% 6.398800% Actual/360 $74,166
34 300 60 59 6.370000% 6.348800% Actual/360 $73,382
35 355 121 116 5.280000% 5.258800% Actual/360 $60,393
36 Interest Only 120 118 6.045000% 6.023800% Actual/360 $51,075
37 360 120 119 5.950000% 5.928800% Actual/360 $58,441
40 296 120 116 7.320000% 7.298800% Actual/360 $67,277
41 Interest Only 60 50 5.290000% 5.268800% Actual/360 $41,120
42 358 120 118 5.830000% 5.748800% Actual/360 $53,569
43 360 84 79 5.920000% 5.898800% Actual/360 $53,498
45 358 122 120 5.900000% 5.878800% Actual/360 $53,382
46 297 120 117 6.870000% 6.848800% Actual/360 $60,770
48 360 122 120 6.080000% 6.058800% Actual/360 $51,055
49 360 120 120 5.790000% 5.768800% Actual/360 $49,234
50 360 120 120 6.270000% 6.248800% Actual/360 $50,380
52 296 120 116 6.030000% 6.008800% Actual/360 $52,337
53 297 119 116 5.950000% 5.928800% Actual/360 $51,300
54 360 122 121 6.230000% 6.208800% Actual/360 $48,693
55 360 120 119 5.920000% 5.898800% Actual/360 $44,819
57 360 121 119 5.850000% 5.828800% Actual/360 $44,246
59 360 120 118 5.940000% 5.908800% Actual/360 $44,082
60 360 120 120 6.130000% 6.108800% Actual/360 $43,163
61 360 120 118 5.890000% 5.868800% Actual/360 $40,882
63 300 120 119 5.920000% 5.898800% Actual/360 $44,120
65 348 121 109 5.650000% 5.578800% Actual/360 $39,252
66 358 120 118 5.800000% 5.778800% Actual/360 $36,965
67 360 120 118 5.750000% 5.728800% Actual/360 $35,014
68 299 119 118 5.592500% 5.571300% Actual/360 $37,177
70 360 120 119 5.960000% 5.928800% Actual/360 $34,028
71 360 120 114 5.620000% 5.598800% Actual/360 $32,794
72 300 120 120 6.580000% 6.558800% Actual/360 $37,412
73 360 120 119 6.280000% 6.258800% Actual/360 $33,972
75 359 120 119 6.320000% 6.298800% Actual/360 $34,059
76 360 120 119 6.540000% 6.428800% Actual/360 $34,591
77 359 120 119 6.370000% 6.348800% Actual/360 $33,765
78 358 60 58 6.480000% 6.458800% Actual/360 $34,061
79 360 121 121 6.190000% 6.168800% Actual/360 $31,998
82 360 120 119 6.240000% 6.178800% Actual/360 $31,676
83 358 120 118 5.770000% 5.748800% Actual/360 $29,242
84 356 120 116 5.780000% 5.668800% Actual/360 $29,274
85 360 121 120 5.870000% 5.758800% Actual/360 $28,083
86 343 121 104 5.340000% 5.318800% Actual/360 $26,216
87 359 120 119 6.480000% 6.458800% Actual/360 $27,690
88 360 120 119 5.990000% 5.968800% Actual/360 $26,052
89 300 120 120 6.250000% 6.228800% Actual/360 $28,696
90 360 120 119 5.570000% 5.498800% Actual/360 $24,604
91 360 122 121 6.140000% 6.118800% Actual/360 $25,865
92 360 120 112 5.490000% 5.468800% Actual/360 $23,821
93 360 121 121 6.190000% 6.168800% Actual/360 $25,207
94 360 84 84 6.340000% 6.318800% Actual/360 $25,485
95 298 120 118 6.310000% 6.288800% Actual/360 $26,535
96 359 120 119 5.990000% 5.968800% Actual/360 $23,747
97 358 120 118 6.110000% 6.088800% Actual/360 $21,839
98 360 120 119 5.670000% 5.648800% Actual/360 $20,248
99 360 120 120 6.540000% 6.518800% Actual/360 $22,170
100 295 120 115 5.830000% 5.808800% Actual/360 $21,554
101 360 121 119 6.020000% 5.998800% Actual/360 $19,948
102 360 120 115 5.720000% 5.698800% Actual/360 $19,195
103 360 120 119 5.560000% 5.488800% Actual/360 $18,576
104 360 121 119 5.680000% 5.648800% Actual/360 $18,532
105 359 120 119 6.550000% 6.528800% Actual/360 $20,332
106 359 120 119 6.000000% 5.978800% Actual/360 $19,186
107 355 121 116 5.681000% 5.659800% Actual/360 $18,534
108 360 120 119 5.560000% 5.488800% Actual/360 $18,004
109 358 120 118 6.050000% 5.988800% Actual/360 $18,987
110 360 120 119 6.520000% 6.498800% Actual/360 $19,793
111 358 122 120 5.970000% 5.948800% Actual/360 $18,646
112 295 120 115 5.880000% 5.858800% Actual/360 $19,747
113 359 120 119 6.600000% 6.578800% Actual/360 $19,479
114 360 121 119 6.000000% 5.978800% Actual/360 $17,987
115 358 120 118 6.010000% 5.988800% Actual/360 $18,006
116 349 120 109 5.150000% 5.128800% Actual/360 $16,031
117 360 120 120 6.340000% 6.318800% Actual/360 $17,379
118 360 120 119 5.560000% 5.488800% Actual/360 $15,718
119 295 120 115 5.970000% 5.948800% Actual/360 $17,347
120 360 120 118 6.050000% 6.018800% Actual/360 $15,069
121 358 120 118 6.570000% 6.548800% Actual/360 $15,917
122 358 120 118 5.940000% 5.918800% Actual/360 $14,892
123 358 120 118 5.770000% 5.748800% Actual/360 $14,329
124 360 120 120 6.390000% 6.368800% Actual/360 $15,153
125 360 120 118 6.120000% 6.098800% Actual/360 $14,575
126 360 120 120 6.240000% 6.178800% Actual/360 $14,762
127 355 120 115 5.870000% 5.848800% Actual/360 $14,189
128 356 121 117 5.550000% 5.528800% Actual/360 $13,417
129 360 122 121 6.280000% 6.218800% Actual/360 $14,206
131 360 121 120 6.030000% 5.988800% Actual/360 $13,834
132 349 120 109 5.400000% 5.378800% Actual/360 $12,775
133 360 120 116 5.720000% 5.698800% Actual/360 $12,564
134 360 120 118 5.980000% 5.918800% Actual/360 $12,564
136 358 60 58 6.780000% 6.668800% Actual/360 $12,335
137 349 120 109 5.680000% 5.658800% Actual/360 $10,656
138 360 120 120 6.540000% 6.518800% Actual/360 $11,425
139 358 122 120 6.280000% 6.258800% Actual/360 $10,914
140 358 120 118 5.960000% 5.938800% Actual/360 $10,149
141 358 122 120 6.380000% 6.358800% Actual/360 $9,987
142 178 180 178 6.190000% 6.168800% Actual/360 $13,667
143 324 120 119 6.350000% 6.328800% Actual/360 $10,175
144 360 120 119 5.560000% 5.488800% Actual/360 $8,859
146 360 120 119 6.420000% 6.398800% Actual/360 $8,525
147 359 120 119 6.580000% 6.558800% Actual/360 $8,024
148 360 120 120 6.430000% 6.408800% Actual/360 $7,843
149 358 120 118 6.300000% 6.278800% Actual/360 $7,737
150 359 120 119 6.570000% 6.548800% Actual/360 $7,640
151 322 120 118 6.300000% 6.278800% Actual/360 $7,714
152 359 84 83 6.500000% 6.478800% Actual/360 $7,048
153 359 120 119 6.700000% 6.678800% Actual/360 $6,937
155 299 120 119 6.700000% 6.678800% Actual/360 $6,878
156 355 120 115 5.870000% 5.758800% Actual/360 $5,912
157 358 120 118 6.280000% 6.258800% Actual/360 $6,109
First
Payment Maturity Letter of Ground Earthquake Environmental
# Date Date ARD (4) Lockout/Defeasance (5) Credit Lease Insurance (Y/N) Insurance (Y/N)
------------------------------------------------------------------------------------------------------------------------------------
1 4/8/2006 3/8/2016 N/A Yes $0 No N/A N/A
2 2/11/2006 1/11/2016 N/A Yes $0
2a No X/X X/X
0x Xx X/X X/X
0x Xx X/X N/A
2d No N/A N/A
2e No N/A N/A
2f No X/X X/X
0x Xx X/X X/X
0x Xx X/X X/X
0x No N/A N/A
2j No N/A N/A
2k No N/A N/A
2l No N/A N/A
2m No N/A N/A
2n No N/A N/A
2o No X/X X/X
0x Xx X/X X/X
0x Xx X/X X/X
0 4/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
4 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
5 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
9 1/11/2006 12/11/2015 N/A Yes $0 No N/A N/A
10 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
12 6/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
13 4/11/2006 3/11/2016 N/A Yes $0
13a No N/A X/X
00x Xx X/X X/X
00x Xx X/X X/X
00x No X/X X/X
00x Xx X/X X/X
00x No N/A N/A
13g No N/A N/A
14 4/11/2006 3/11/2016 N/A Yes $0
14a No N/A X/X
00x Xx X/X X/X
00x Xx X/X X/X
00x Yes X/X X/X
00x Xx X/X X/X
00x No N/A N/A
14g No N/A N/A
15 5/11/2006 4/11/2016 N/A Yes $1,600,000 No N/A N/A
16 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
17 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
18 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
19 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
20 6/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
21 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
24 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
25 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
26 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
27 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
29 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
30 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
31 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
32 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
33 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
34 6/11/2006 5/11/2011 N/A Yes $0 No N/A N/A
35 2/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
36 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
37 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
40 3/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
41 9/11/2005 8/11/2010 N/A Yes $0 No N/A N/A
42 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
43 2/11/2006 1/11/2013 N/A Yes $0 No N/A N/A
45 5/11/2006 6/11/2016 N/A Yes $400,000 No N/A N/A
46 4/11/2006 3/11/2016 N/A Yes $0 No N/A N/A
48 5/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
49 7/11/2006 6/11/2016 N/A No $0 No N/A N/A
50 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
52 3/11/2006 2/11/2031 2/11/2016 Yes $0 No N/A N/A
53 4/11/2006 2/11/2016 N/A Yes $0 Yes N/A N/A
54 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
55 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
57 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
59 5/11/2006 4/11/2016 N/A No $0 No N/A N/A
60 7/11/2006 6/11/2036 6/11/2016 Yes $0 No N/A N/A
61 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
63 6/11/2006 5/11/2016 N/A Yes $15,696 No N/A N/A
65 7/11/2005 7/11/2015 N/A No $0 No N/A N/A
66 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
67 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
68 6/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
70 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
71 1/11/2006 12/11/2015 N/A Yes $0 No N/A N/A
72 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
73 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
75 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
76 6/11/2006 5/11/2016 N/A Yes $200,000 No N/A N/A
77 6/11/2006 5/11/2016 N/A Yes $0 No n/a N/A
78 5/11/2006 4/11/2011 N/A Yes $0 No N/A N/A
79 7/11/2006 7/11/2016 N/A No $0 No N/A N/A
82 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
83 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
84 3/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
85 6/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
86 2/11/2005 2/11/2015 N/A Yes $0 No N/A N/A
87 6/11/2006 5/11/2036 5/11/2016 Yes $0 No N/A N/A
88 6/11/2006 5/11/2016 N/A Yes $0 No n/a N/A
89 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
90 6/11/2006 5/11/2016 N/A Yes $0 No n/a N/A
91 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
92 11/11/2005 10/11/2015 N/A Yes $0 No N/A N/A
93 7/11/2006 7/11/2016 N/A No $0 No N/A N/A
94 7/11/2006 6/11/2013 N/A Yes $0 No N/A N/A
95 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
96 6/11/2006 5/11/2016 N/A Yes $660,000 No N/A N/A
97 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
98 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
99 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
100 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
101 5/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
102 2/11/2006 1/11/2036 1/11/2016 Yes $0 No N/A N/A
103 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
104 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
105 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
106 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
107 2/11/2006 2/11/2016 N/A Yes $0 No N/A Yes
108 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
109 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
110 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
111 5/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
112 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
113 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
114 5/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
115 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
116 8/11/2005 7/11/2015 N/A Yes $0 No N/A N/A
117 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
118 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
119 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
120 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
121 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
122 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
123 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
124 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
125 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
126 7/11/2006 6/11/2016 N/A Yes $0 No N/A N/A
127 2/11/2006 1/11/2016 N/A Yes $0 No N/A N/A
128 3/11/2006 3/11/2016 N/A Yes $0 No N/A N/A
129 6/11/2006 7/11/2016 N/A Yes $0 No N/A N/A
131 6/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
132 8/11/2005 7/11/2015 N/A Yes $0 No N/A Yes
133 3/11/2006 2/11/2016 N/A Yes $0 No N/A N/A
134 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
136 5/11/2006 4/11/2011 N/A Yes $0 No N/A Yes
137 8/11/2005 7/11/2015 N/A Yes $0 No N/A Yes
138 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
139 5/11/2006 6/11/2016 N/A No $0 No N/A Yes
140 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
141 5/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
142 5/11/2006 4/11/2021 N/A Yes $0 No N/A Yes
143 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
144 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
146 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
147 6/11/2006 5/11/2016 N/A Yes $0 No N/A N/A
148 7/11/2006 6/11/2016 N/A Yes $0 No N/A Yes
149 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
150 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
151 5/11/2006 4/11/2016 N/A Yes $0 No N/A Yes
152 6/11/2006 5/11/2013 N/A Yes $0 No N/A Yes
153 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
155 6/11/2006 5/11/2016 N/A Yes $0 No N/A Yes
156 2/11/2006 1/11/2016 N/A Yes $0 No N/A Yes
157 5/11/2006 4/11/2016 N/A Yes $0 No N/A N/A
Servicing
and
Trustee
# Fees Loan Seller
------------------------------------------------------------------------------------------------------------------------------------
1 0.021200% Column Financial, Inc.
2 0.021200% Column Financial, Inc.
2a Column Financial, Inc.
2b Column Financial, Inc.
2c Column Financial, Inc.
2d Column Financial, Inc.
2e Column Financial, Inc.
2f Column Financial, Inc.
2g Column Financial, Inc.
2h Column Financial, Inc.
2i Column Financial, Inc.
2j Column Financial, Inc.
2k Column Financial, Inc.
2l Column Financial, Inc.
2m Column Financial, Inc.
2n Column Financial, Inc.
2o Column Financial, Inc.
2p Column Financial, Inc.
2q Column Financial, Inc.
3 0.021200% Column Financial, Inc.
4 0.021200% Column Financial, Inc.
5 0.021200% Column Financial, Inc.
9 0.021200% Column Financial, Inc.
10 0.021200% Column Financial, Inc.
12 0.021200% Column Financial, Inc.
13 0.081200% Column Financial, Inc.
13a Column Financial, Inc.
13b Column Financial, Inc.
13c Column Financial, Inc.
13d Column Financial, Inc.
13e Column Financial, Inc.
13f Column Financial, Inc.
13g Column Financial, Inc.
14 0.081200% Column Financial, Inc.
14a Column Financial, Inc.
14b Column Financial, Inc.
14c Column Financial, Inc.
14d Column Financial, Inc.
14e Column Financial, Inc.
14f Column Financial, Inc.
14g Column Financial, Inc.
15 0.021200% Column Financial, Inc.
16 0.021200% Column Financial, Inc.
17 0.021200% Column Financial, Inc.
18 0.021200% Column Financial, Inc.
19 0.021200% Column Financial, Inc.
20 0.021200% Column Financial, Inc.
21 0.021200% Column Financial, Inc.
24 0.021200% Column Financial, Inc.
25 0.071200% Column Financial, Inc.
26 0.021200% Column Financial, Inc.
27 0.071200% Column Financial, Inc.
29 0.021200% Column Financial, Inc.
30 0.021200% Column Financial, Inc.
31 0.021200% Column Financial, Inc.
32 0.031200% Column Financial, Inc.
33 0.021200% Column Financial, Inc.
34 0.021200% Column Financial, Inc.
35 0.021200% Column Financial, Inc.
36 0.021200% Column Financial, Inc.
37 0.021200% Column Financial, Inc.
40 0.021200% Column Financial, Inc.
41 0.021200% Column Financial, Inc.
42 0.081200% Column Financial, Inc.
43 0.021200% Column Financial, Inc.
45 0.021200% Column Financial, Inc.
46 0.021200% Column Financial, Inc.
48 0.021200% Column Financial, Inc.
49 0.021200% Column Financial, Inc.
50 0.021200% Column Financial, Inc.
52 0.021200% Column Financial, Inc.
53 0.021200% Column Financial, Inc.
54 0.021200% Column Financial, Inc.
55 0.021200% Column Financial, Inc.
57 0.021200% Column Financial, Inc.
59 0.031200% Column Financial, Inc.
60 0.021200% Column Financial, Inc.
61 0.021200% Column Financial, Inc.
63 0.021200% Column Financial, Inc.
65 0.071200% Column Financial, Inc.
66 0.021200% Column Financial, Inc.
67 0.021200% Column Financial, Inc.
68 0.021200% Column Financial, Inc.
70 0.031200% Column Financial, Inc.
71 0.021200% Column Financial, Inc.
72 0.021200% Column Financial, Inc.
73 0.021200% Column Financial, Inc.
75 0.021200% Column Financial, Inc.
76 0.111200% Column Financial, Inc.
77 0.021200% Column Financial, Inc.
78 0.021200% Column Financial, Inc.
79 0.021200% Column Financial, Inc.
82 0.061200% Column Financial, Inc.
83 0.021200% Column Financial, Inc.
84 0.111200% Column Financial, Inc.
85 0.111200% Column Financial, Inc.
86 0.021200% Column Financial, Inc.
87 0.021200% Column Financial, Inc.
88 0.021200% Column Financial, Inc.
89 0.021200% Column Financial, Inc.
90 0.071200% Column Financial, Inc.
91 0.021200% Column Financial, Inc.
92 0.021200% Column Financial, Inc.
93 0.021200% Column Financial, Inc.
94 0.021200% Column Financial, Inc.
95 0.021200% Column Financial, Inc.
96 0.021200% Column Financial, Inc.
97 0.021200% Column Financial, Inc.
98 0.021200% Column Financial, Inc.
99 0.021200% Column Financial, Inc.
100 0.021200% Column Financial, Inc.
101 0.021200% Column Financial, Inc.
102 0.021200% Column Financial, Inc.
103 0.071200% Column Financial, Inc.
104 0.031200% Column Financial, Inc.
105 0.021200% Column Financial, Inc.
106 0.021200% Column Financial, Inc.
107 0.021200% Column Financial, Inc.
108 0.071200% Column Financial, Inc.
109 0.061200% Column Financial, Inc.
110 0.021200% Column Financial, Inc.
111 0.021200% Column Financial, Inc.
112 0.021200% Column Financial, Inc.
113 0.021200% Column Financial, Inc.
114 0.021200% Column Financial, Inc.
115 0.021200% Column Financial, Inc.
116 0.021200% Column Financial, Inc.
117 0.021200% Column Financial, Inc.
118 0.071200% Column Financial, Inc.
119 0.021200% Column Financial, Inc.
120 0.031200% Column Financial, Inc.
121 0.021200% Column Financial, Inc.
122 0.021200% Column Financial, Inc.
123 0.021200% Column Financial, Inc.
124 0.021200% Column Financial, Inc.
125 0.021200% Column Financial, Inc.
126 0.061200% Column Financial, Inc.
127 0.021200% Column Financial, Inc.
128 0.021200% Column Financial, Inc.
129 0.061200% Column Financial, Inc.
131 0.041200% Column Financial, Inc.
132 0.021200% Column Financial, Inc.
133 0.021200% Column Financial, Inc.
134 0.061200% Column Financial, Inc.
136 0.111200% Column Financial, Inc.
137 0.021200% Column Financial, Inc.
138 0.021200% Column Financial, Inc.
139 0.021200% Column Financial, Inc.
140 0.021200% Column Financial, Inc.
141 0.021200% Column Financial, Inc.
142 0.021200% Column Financial, Inc.
143 0.021200% Column Financial, Inc.
144 0.071200% Column Financial, Inc.
146 0.021200% Column Financial, Inc.
147 0.021200% Column Financial, Inc.
148 0.021200% Column Financial, Inc.
149 0.021200% Column Financial, Inc.
150 0.021200% Column Financial, Inc.
151 0.021200% Column Financial, Inc.
152 0.021200% Column Financial, Inc.
153 0.021200% Column Financial, Inc.
155 0.021200% Column Financial, Inc.
156 0.111200% Column Financial, Inc.
157 0.021200% Column Financial, Inc.
(1) Assumes a Cut-off Date in June 2006.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(3) For mortgage loans classified as interest only, the monthly payments
represent the average of one full year of interest payments. For mortgage
loans with an initial interest only term, the monthly payments represent
the principal and interest payments due after the initial interest only
term.
(4) Anticipated Repayment Date.
(5) Yes means that defeasance is permitted notwithstanding the Lockout Period.
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2006-C3
Loan Group
# # Property Name
------------------------------------------------------------------------------------------------------------------------------------
6 1 Towne Center at Xxxxx Xxxxx
0 0 Xxxxxxxxxx Xxxxx
8 1 CheckFree Corporation
11 1 Capital Center
22 1 Xxxxxx Square Galleria
23 1 Pier One at Xxxxxx Square Galleria
28 1 T-Mobile - Springfield
38 2 Long Xxxxxxx Apartments
39 1 Midwest Xxxxx Xxxxxx & Xxxxxxx Xxxxx Xxxxx
00 1 Best Western - Orange County Airport
47 1 Port Warwick I Xxxxxxx Xxxxxx Xxxxxxxx
00 0 Xxxxxxxxx Xxxxxxxxx Xxxxxx - Tempe
56 1 Xxxx Xxxx
58 1 Medical Pavillion of Treasure Coast Square
62 2 Riverbend Apartments
64 1 Los Alisos Village
69 2 Yacht Club Apartments
74 1 Harbour Bay Xxxxx
00 0 000 Xxxxx Xx
00 0 Xxxxxx Xxxx Apartments
130 2 Brookhollow Apartments
135 1 Basehor Town Square
145 2 Gardens at Xxxxxx Apartments
154 2 The Cedars Apartments
# Address City
------------------------------------------------------------------------------------------------------------------------------------
6 7275-7539 Corporate Boulevard & 7150, 7350 & 0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx
7 0000-0000 X. Xxxx Xxxxxx & 0000-0000 Telephone Road Ventura
8 0000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxxxx
11 0000 X. Xxxxxxxxx Xxxxxx Tallahassee
00 Xxx Xxxxxx Xxxxxx Xxxxxxxxx
23 One Xxxxxx Square Cambridge
28 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxxxxxxxx
38 0 Xxxxxxxx Xxxx Xxxx Xxxx
39 0000 Xxxxxxx Xxxx & 0000 Xxxxxxxxxxx Xxxx Xxx Xxxxx
44 0000 Xxxxx Xxxxxxx Xxxxx Xxxxx Xxx
47 11803 Jefferson Avenue Newport News
51 1600 West Broadway Road Tempe
56 2050 North Alma School Road Chandler
58 3496 - 3498 N.W. Federal Highway Jensen Beach
62 2121 East 83rd Avenue Tulsa
64 22900-22942 Los Alisos Boulevard Mission Viejo
69 5051 South Toledo Avenue Tulsa
74 3766 SE Ocean Boulevard Stuart
80 482 Payne Road Scarborough
81 5031 South 72nd East Avenue Tulsa
130 965 Biloxi Drive Norman
135 15510 State Avenue Basehor
145 419 South 27th Street Duncan
154 214 Bull Run Norman
Units/
Sq. Ft./ Orig Rem.
Zip Property Rooms/ Original Cut-off Amort. Amort.
# County State Code Type Pads Balance Balance (1) Term Term (1)
------------------------------------------------------------------------------------------------------------------------------------
6 East Baton Rouge Parish LA 70809, 70806 Retail 276,874 $57,000,000 $57,000,000 360 360
7 Ventura CA 93003 Retail 153,205 $36,975,000 $36,975,000 360 360
8 Gwinnett GA 30092 Office 220,675 $30,000,000 $30,000,000 360 360
11 Leon FL 32304 Office 295,225 $25,000,000 $25,000,000 360 360
22 Middlesex MA 02140 Retail 28,510 $8,150,000 $8,143,578 360 359
23 Middlesex MA 02140 Retail 9,175 $4,350,000 $4,346,573 360 359
28 Greene MO 65803 Office 78,421 $12,000,000 $12,000,000 360 360
38 Cumberland PA 17011 Multifamily 286 $9,800,000 $9,800,000 360 360
39 Dupage IL 60523 Office 95,413 $9,800,000 $9,791,466 360 359
44 Orange CA 92705 Hotel 148 $9,000,000 $9,000,000 300 300
47 Newport News City VA 23606 Office 62,599 $8,500,000 $8,500,000 360 360
51 Maricopa AZ 85282 Office 74,731 $8,120,000 $8,120,000 360 360
56 Maricopa AZ 85224 Retail 69,198 $7,500,000 $7,500,000 360 360
58 Martin FL 34957 Office 56,100 $7,445,000 $7,445,000 360 360
62 Tulsa OK 74137 Multifamily 284 $6,900,000 $6,900,000 360 360
64 Orange CA 92691 Retail 31,401 $6,875,000 $6,875,000 360 360
69 Tulsa OK 74135 Multifamily 376 $5,950,000 $5,950,000 360 360
74 Martin FL 34996 Retail 61,804 $5,500,000 $5,500,000 360 360
80 Cumberland ME 04074 Office 38,784 $5,200,000 $5,200,000 360 360
81 Tulsa OK 74145 Multifamily 180 $5,200,000 $5,200,000 360 360
130 Cleveland OK 73071 Multifamily 121 $2,300,000 $2,300,000 360 360
135 Leavenworth KS 66007 Retail 22,762 $2,000,000 $2,000,000 360 360
145 Stephens OK 73533 Multifamily 90 $1,400,000 $1,400,000 360 360
154 Tulsa OK 73071 Multifamily 96 $1,072,000 $1,072,000 360 360
Orig Rem. Net First
Term to Term to Interest Interest Interest Calculation Monthly Payment Maturity
# Maturity (2) Maturity (1) (2) Rate Rate (30/360 / Actual/360) Payment (3) Date Date
------------------------------------------------------------------------------------------------------------------------------------
6 120 115 5.850000% 5.808800% Actual/360 $336,266 2/1/2006 1/1/2016
7 121 121 6.110000% 6.068800% Actual/360 $224,305 7/1/2006 7/1/2016
8 120 120 6.180000% 6.138800% Actual/360 $183,352 7/1/2006 6/1/2016
11 120 120 6.350000% 6.278800% Actual/360 $155,559 7/1/2006 6/1/2016
22 60 59 6.190000% 6.118800% Actual/360 $49,863 6/1/2006 5/1/2011
23 60 59 6.190000% 6.118800% Actual/360 $26,614 6/1/2006 5/1/2011
28 121 121 6.080000% 6.008800% Actual/360 $72,564 7/1/2006 7/1/2016
38 120 120 6.030000% 5.988800% Actual/360 $58,945 7/1/2006 6/1/2016
39 120 119 5.810000% 5.718800% Actual/360 $57,564 6/1/2006 5/1/2016
44 120 120 6.760000% 6.618800% Actual/360 $62,239 7/1/2006 6/1/2016
47 121 121 5.760000% 5.718800% Actual/360 $49,658 7/1/2006 7/1/2016
51 120 118 5.520000% 5.458800% Actual/360 $46,206 5/1/2006 4/1/2016
56 120 120 6.240000% 6.148800% Actual/360 $46,130 7/1/2006 6/1/2016
58 121 121 6.180000% 6.138800% Actual/360 $45,502 7/1/2006 7/1/2016
62 121 121 5.950000% 5.888800% Actual/360 $41,147 7/1/2006 7/1/2016
64 120 120 6.160000% 6.088800% Actual/360 $41,929 7/1/2006 6/1/2016
69 121 121 5.950000% 5.888800% Actual/360 $35,482 7/1/2006 7/1/2016
74 121 121 6.180000% 6.108800% Actual/360 $33,614 7/1/2006 7/1/2016
80 120 120 6.460000% 6.418800% Actual/360 $32,731 7/1/2006 6/1/2016
81 121 121 5.950000% 5.888800% Actual/360 $31,010 7/1/2006 7/1/2016
130 121 121 5.950000% 5.888800% Actual/360 $13,716 7/1/2006 7/1/2016
135 121 121 6.380000% 6.338800% Actual/360 $12,484 7/1/2006 7/1/2016
145 180 180 6.900000% 6.808800% Actual/360 $9,220 7/1/2006 6/1/2021
154 121 121 5.950000% 5.888800% Actual/360 $6,393 7/1/2006 7/1/2016
Servicing
and
Letter of Ground Earthquake Environmental Trustee
# ARD (4) Lockout/Defeasance (5) Credit Lease Insurance (Y/N) Insurance (Y/N) Fees Loan Seller
------------------------------------------------------------------------------------------------------------------------------------
6 N/A Yes $0 No N/A N/A 0.041200% PNC
7 N/A Yes $0 No N/A N/A 0.041200% PNC
8 N/A Yes $0 No No N/A 0.041200% PNC
11 N/A Yes $0 No N/A N/A 0.071200% PNC
22 N/A Yes $0 No N/A N/A 0.071200% PNC
23 N/A Yes $0 No N/A N/A 0.071200% PNC
28 N/A Yes $0 No N/A N/A 0.071200% PNC
38 N/A Yes $0 No N/A N/A 0.041200% PNC
39 N/A Yes $0 No N/A N/A 0.091200% PNC
44 N/A Yes $0 No N/A N/A 0.141200% PNC
47 N/A Yes $0 No N/A N/A 0.041200% PNC
51 N/A Yes $0 No N/A N/A 0.061200% PNC
56 N/A No $0 No N/A N/A 0.091200% PNC
58 N/A Yes $0 No N/A N/A 0.041200% PNC
62 N/A No $0 No N/A N/A 0.061200% PNC
64 N/A Yes $0 No N/A Yes 0.071200% PNC
69 N/A No $0 No N/A N/A 0.061200% PNC
74 N/A Yes $0 No N/A N/A 0.071200% PNC
80 N/A Yes $0 No N/A N/A 0.041200% PNC
81 N/A No $0 No N/A N/A 0.061200% PNC
130 N/A No $0 No N/A N/A 0.061200% PNC
135 N/A Yes $0 No N/A Yes 0.041200% PNC
145 N/A No $0 No N/A Yes 0.091200% PNC
154 N/A No $0 No N/A N/A 0.061200% PNC
(1) Assumes a Cut-off Date in June 2006.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(3) For mortgage loans classified as interest only, the monthly payments
represent the average of one full year of interest payments. For mortgage
loans with an initial interest only term, the monthly payments represent
the principal and interest payments due after the initial interest only
term.
(4) Anticipated Repayment Date.
(5) Yes means that defeasance is permitted notwithstanding the Lockout Period.
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
Credit Suisse First Boston PNC Bank, National Association
Mortgage Securities Corp. 249 Fifth Avenue
11 Madison Avenue One PNC Plaza
New York, New York 10010 Pittsburgh, Pennsylvania 15222
Column Financial, Inc. Midland Loan Services, Inc.
3414 Peachtree Road, N.E. 10851 Mastin, Building 82, 7th Floor
Suite 1140 Overland Park, Kansas 66210
Atlanta, Georgia 30326-1113
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3
-----------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of June 1, 2006 and related to the above-referenced Certificates (the
"Agreement"), Wells Fargo Bank, N.A. as trustee (the "Trustee"), hereby
certifies as to each Trust Mortgage Loan subject to the Agreement (except as
specifically identified in the exception report attached hereto) that: (i) the
original Mortgage Note specified in clause (i) of the definition of "Mortgage
File" and all allonges thereto, if any (or a copy of such Mortgage Note,
together with a lost note affidavit certifying that the original of such
Mortgage Note has been lost), the original or copy of documents specified in
clauses (ii) through (v), (vii), (ix), (xi), (xii), (xv), (xvi) and (xviii) of
the definition of "Mortgage File" and, in the case of a hospitality property,
the documents specified in clause (viii) of the definition of "Mortgage File"
(without regard to the parenthetical), and any other Specially Designated
Mortgage Loan Documents, have been received by it or a Custodian on its behalf;
(ii) if such report is due more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(d) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents or
an appropriate receipt of recording/filing therefor); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan.
Other than as stipulated in the Agreement, none of the Trustee,
the Master Servicer, the Special Servicer, or any Custodian (a) is under any
duty or obligation to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Trust Mortgage Loans
delivered to it to determine that the same are valid, legal, effective, genuine,
binding, enforceable, sufficient or appropriate for the represented purpose or
that they are other than what they purport to be on their face and (b) shall
have any responsibility for determining whether the text of any assignment or
endorsement is in proper or recordable form, whether the requisite recording of
any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction.
In performing the reviews contemplated by Sections 2.02(a) and
2.02(b) of the Agreement, the Trustee is not under any duty or obligation (i) to
determine whether any of the documents specified in clauses (vi), (x), (xiii),
(xiv), (xvii) and (xix) of the definition of "Mortgage File" and all documents
specified on the related Mortgage Loan checklist exist or are required to be
delivered by the Depositor, the Mortgage Loan Seller or any other Person other
than to the extent identified on the related Mortgage Loan Schedule, or (ii) 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, in recordable form, genuine, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face. It is understood that the scope of
the Trustee's review of the Mortgage Files is limited solely to confirming that
the documents specified in clauses (i) through (v), (vii), (ix), (xi), (xii),
(xvi) and (xviii) and have been received and such additional information as will
be necessary for delivering the certifications required by the Agreement.
Further, with respect to UCC filings, absent actual knowledge or
copies of UCC filings in the Mortgage File indicating otherwise, the Trustee
shall make the assumptions contemplated by Section 2.02(c) of the Agreement.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
WELLS FARGO BANK, N.A.
as Trustee
By:____________________________________
Name:
Title:
EXHIBIT B-4
SCHEDULE OF MORTGAGE LOANS COVERED BY ENVIRONMENTAL INSURANCE
EXHIBIT C
[Reserved]
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, MD 21045-1951
Attention: Mortgage Document Custody - CSMC 2006-C3
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3
-----------------------------------------------------
In connection with the administration of the Mortgage Files held
by or on behalf of you as trustee under a certain Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as Master Servicer (in such capacity, the "Master
Servicer"), and Special Servicer, and you as trustee (in such capacity, the
"Trustee"), the undersigned as Master Servicer hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage 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 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 days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.,
Master Servicer
By:____________________________________
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, MD 21045-1951
Attention: Mortgage Document Custody - CSMC 2006-C3
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3
-----------------------------------------------------
In connection with the administration of the Mortgage Files held
by or on behalf of you as trustee under a certain Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as Master Servicer and Special Servicer (in such
capacity, the "Special Servicer"), and you as trustee (in such capacity, the
"Trustee"), the undersigned as Special Servicer hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
________ 1. The Mortgage Loan is being foreclosed.
________ 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 days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.,
as Special Servicer
By:____________________________________
Name:
Title:
EXHIBIT E
[Reserved]
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services, CSMC 2006-C3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class ______ Certificates [having an initial
aggregate Certificate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 30, 2006 (the
"Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
-----------------------------------------------------------
Dear Sirs:
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 among Credit Suisse First Boston Mortgage
Securities Corp., as depositor, Midland Loan Services, Inc., as Master Servicer
(the "Master Servicer"), and Special Servicer (the "Special Servicer"), and
Wells Fargo Bank, N.A. as Trustee (the "Trustee"). All capitalized terms used
herein and not otherwise 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, 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"), or would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act (a "Qualified Institutional Buyer") purchasing for its own
account or for the account of another person that is itself a Qualified
Institutional Buyer. In determining whether the Transferee is a Qualified
Institutional Buyer, the Transferor and any person acting on behalf of the
Transferor in this matter has relied upon the following method(s) of
establishing the Transferee's ownership and discretionary investments of
securities (check one or more):
___ (a) The Transferee's most recent publicly available
financial statements, which statements present the
information as of a date within 16 months preceding the
date of sale of the Transferred Certificates in the case of
a U.S. purchaser and within 18 months preceding such date
of sale in the case of a foreign purchaser; or
___ (b) The most recent publicly available information
appearing in documents filed by the Transferee with the
Securities and Exchange Commission or another United States
federal, state, or local governmental agency or
self-regulatory organization, or with a foreign
governmental agency or self-regulatory organization, which
information is as of a date within 16 months preceding the
date of sale of the Transferred Certificates in the case of
a U.S. purchaser and within 18 months preceding such date
of sale in the case of a foreign purchaser; or
___ (c) The most recent publicly available information
appearing in a recognized securities manual, which
information is as of a date within 16 months preceding the
date of sale of the Transferred Certificates in the case of
a U.S. purchaser and within 18 months preceding such date
of sale in the case of a foreign purchaser; or
___ (d) A certification by the chief financial officer, a
person fulfilling an equivalent function, or other
executive officer of the Transferee, specifying the amount
of securities owned and invested on a discretionary basis
by the Transferee as of a specific date on or since the
close of the Transferee's most recent fiscal year, or, in
the case of a Transferee that is a member of a "family of
investment companies", as that term is defined in Rule
144A, a certification by an executive officer of the
investment adviser specifying the amount of securities
owned by the "family of investment companies" as of a
specific date on or since the close of the Transferee's
most recent fiscal year.
___ (e) Other. (Please specify brief description of method)
______________________________________________________
______________________________________________________
______________________________________________________.
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of securities
owned and invested on a discretionary basis by an entity for purposes of
establishing whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with such entity;
securities that are part of an unsold allotment to or subscription
by such entity, if such entity is a dealer; securities of issuers
that are part of such entity's "family of investment companies",
if such entity is a registered investment company; bank deposit
notes and certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase
agreement; and currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of
such securities, except where the entity 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
may be valued at market; and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared
in accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under
the direction of the entity, except that, unless the entity is a
reporting company under Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, securities owned by such
subsidiaries may not be included if the entity itself is a
majority-owned subsidiary that would be included in the
consolidated financial statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor is
relying on the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished,
or caused to be furnished, to the Transferee 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 (e) all related matters, that the Transferee has
requested.
Very truly yours,
_______________________________________
(Transferor)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services, CSMC 2006-C3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class ______ Certificates [having an initial
aggregate Certificate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 30, 2006 (the
"Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
-----------------------------------------------------------
Dear Sirs:
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, among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer
(the "Master Servicer"), and Special Servicer (the "Special Servicer"), and
Wells Fargo Bank, N.A. as Trustee (the "Trustee"). All capitalized terms used
herein and not otherwise 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
Depositor and the Trustee, 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 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:______________________________
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services, CSMC 2006-C3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class ______ Certificates [having an initial
aggregate Certificate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 30, 2006 (the
"Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
-----------------------------------------------------------
Dear Sirs:
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, among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer
(the "Master Servicer"), and Special Servicer (the "Special Servicer"), and
Wells Fargo Bank, N.A. as Trustee (the "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, 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 distributions
thereon, (c) the 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.
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:______________________________
ANNEX 1 TO EXHIBIT F-2A
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
being transferred (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 purchasing 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 the Transferee'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.
___ 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 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, 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 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:_______________________________
-------------
(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.
ANNEX 2 TO EXHIBIT F-2A
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 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, 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, (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:______________________________
Date:_______________________________
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services, CSMC 2006-C3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2006-C3, Class ___
Certificates [having an initial aggregate Certificate [Certificate
Principal Balance] [Certificate Notional Amount] as of June 30,
2006 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
------------------------------------------------------------------
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, among Credit
Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan
Services, Inc., as Master Servicer (the "Master Servicer"), and Special Servicer
(the "Special Servicer"), and Wells Fargo Bank, N.A. as Trustee (the "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, that:
1. 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. 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) neither the
Depositor nor the Trustee is obligated so to register or qualify the Transferred
Certificates, 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 a transaction which is 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 F-1A to
the Pooling and Servicing Agreement, (B) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1B to the Pooling and
Servicing Agreement and a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2A or as Exhibit F-2B to
the Pooling and Servicing Agreement, or (C) an Opinion of Counsel satisfactory
to the Certificate Registrar that the transfer may be made without registration
under the Securities Act, together with the 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 the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing 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 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 SECTION 406 OR 407 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR
ANY ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") OR (B) TO 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.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST
HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO [(1)] A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER") [OR (2) AN
ACCREDITED INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2), (3)
OR (7) OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT OR
AN ENTITY IN WHICH ALL THE EQUITY OWNERS CONSTITUTE ENTITIES
DESCRIBED IN SUCH PARAGRAPHS].
4. Neither the Transferee 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 by means of general advertising or in any other manner, or (e)
taken any other action, that (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 nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
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 paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and 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.
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,
By:____________________________________
(Transferee)
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:
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN NON-REGISTERED CERTIFICATES
HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class __ Certificates [having an initial aggregate
[Certificate Principal Balance] [Certificate Notional
Amount] as of June 30, 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 Corporation ("DTC"), and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as Master Servicer (the "Master Servicer"), and Special
Servicer (the "Special Servicer"), and Wells Fargo Bank, N.A. as Trustee (the
"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, 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 a 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)
neither the Depositor nor the Trustee is obligated so to register or qualify the
Transferred Certificates, 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 any applicable state securities laws or (ii)
sold or transferred in transactions which are exempt from such registration and
qualification and the Transferor desiring to effect such transfer has received
either (A) a certificate from the prospective transferee substantially in the
form attached either as Exhibit F-2C to the Pooling and Servicing Agreement or
as Exhibit F-2D to the Pooling and Servicing Agreement or (B) an opinion of
counsel satisfactory to the Transferor to the effect that such transfer may be
made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing 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 the following legends:
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
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") OR (B) 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, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST
HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"). ACCORDINGLY, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL
BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING OF
PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D
UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY
OWNERS ARE DESCRIBED BY SUCH PARAGRAPHS (AN "INSTITUTIONAL
ACCREDITED INVESTOR").]
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 (e) all related matters, that it has
requested.
Very truly yours,
_______________________________________
(Transferee)
Name:__________________________________
Title:_________________________________
ANNEX 1 TO EXHIBIT F-2C
-----------------------
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 Credit Suisse First
Boston Mortgage Securities Corp. 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 $______________________(2) 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), 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.
___ 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 for 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 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, 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 the Transferee, 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 such 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 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 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 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.
-----------------
(2) 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.
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
ANNEX 2 TO EXHIBIT F-2C
-----------------------
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 Credit Suisse First
Boston Mortgage Securities Corp. 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).
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 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 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.
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:
IF AN ADVISER:
Print Name of Transferee
Date:
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN NON-REGISTERED CERTIFICATES
HELD IN BOOK-ENTRY FORM
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class __ Certificates [having an initial aggregate
[Certificate Principal Balance] [Certificate Notional
Amount] as of June 30, 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 Corporation ("DTC"), and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as Master Servicer (the "Master Servicer"), and Special
Servicer (the "Special Servicer"), and Wells Fargo Bank, N.A. as Trustee (the
"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:
1. The Transferee is acquiring the Transferor's beneficial
ownership interest in 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) neither the Depositor nor the Trustee is obligated
so to register or qualify the Transferred Certificates, 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 any applicable state securities laws, or (ii) is sold or
transferred in transactions which are exempt from such registration and
qualification and the Transferor desiring to effect such transfer has
received either (A) a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2C to the Pooling
and Servicing Agreement or as Exhibit F-2D to the Pooling and Servicing
Agreement or (B) an opinion of counsel satisfactory to the Transferor to
the effect that such transfer may be made without registration under the
Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing 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 the following legends:
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
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") OR (B) 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, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST
HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"). ACCORDINGLY, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL
BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING OF
PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D
UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY
OWNERS ARE DESCRIBED BY SUCH PARAGRAPHS (AN "INSTITUTIONAL
ACCREDITED INVESTOR").]
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 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
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it has
requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3), and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the 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 investment and can afford a
complete loss of such investment.
Very truly yours,
By:____________________________________
Name:
Title:
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN FULLY REGISTERED, CERTIFICATED FORM)
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services, CSMC 2006-C3
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class ______ Certificates [having an initial
Certificate [Certificate Principal Balance] [Certificate
Notional Amount] as of June 30, 2006 (the "Closing Date")
of $________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
---------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
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 among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as Master Servicer (the "Master Servicer"), and
Special Servicer (the "Special Servicer"), and Wells Fargo Bank, N.A. as Trustee
(the "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 is neither (A) a retirement plan or other employee benefit
plan or arrangement, including an individual retirement account or
annuity, a Keogh plan or a collective investment fund or separate account
in which such plans, accounts or arrangements are invested, including an
insurance company general account, that is subject to ERISA or Section
4975 of the Code or any essentially similar provision of applicable
federal, state or local law("Similar Law") (each, a "Plan"), nor (B) a
Person who is directly or indirectly purchasing the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or
___ Except in the case of the Class R, Class LR or Class V Certificates, 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 Section 406 of ERISA and Section 4975 of the
Code by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60 (or similar exemption under Similar Law).
___ The Transferred Certificates are Class ___ Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on the
individual prohibited transaction exemption issued by the U.S. Department
of Labor to Credit Suisse First Mortgage Securities Corp. (PTE 89-90),
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
of the Mortgage Loan Sellers, the Master Servicer, any Exemption-Favored
Party, the Special Servicer, any Sub-Servicer or any Borrower with
respect to any Mortgage Loan or group of Mortgage Loans that represents
more than 5% of the aggregate unamortized principal balance of the
Mortgage Loans determined on the date of the initial issuance of the
Certificates, or by an Affiliate of any such Person, and (Z) agrees that
it will obtain from each of its Transferees to which it transfers an
interest in the Transferred Certificates, 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:
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class ____ Certificates [having an initial
aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of June 30, 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 DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC"), and the Depository Participants) in
the Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as Master Servicer (the "Master Servicer"), and Special
Servicer (the "Special Servicer"), and Wells Fargo Bank, N.A. as Trustee (the
"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 is neither (A) a retirement plan, an employee benefit plan
or other retirement arrangement, including an individual retirement
account or annuity, a Keogh plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is subject
to Section 406 of ERISA or Section 4975 of the Code or any materially
similar provision of applicable federal, state or local law (each, a
"Plan"), nor (B) a Person who is 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;
___ [Except in the case of the Class R, Class LR or Class V Certificates,]
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 Section 406 of ERISA and Section
4975 of the Code by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or
___ The Transferred Certificates are Class ____ Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on the
individual prohibited transaction exemption issued by the U.S. Department
of Labor to Credit Suisse First Mortgage Securities Corp. (PTE 89-90),
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
of the Mortgage Loan Sellers, the Master Servicer, any Exemption-Favored
Party, the Special Servicer, any other Sub-Servicer or any Borrower with
respect to any Mortgage Loan or group of Mortgage Loans that represents
more than 5% of the aggregate unamortized principal balance of the
Mortgage Loans determined on the date of the initial issuance of the
Certificates, or by an Affiliate of any such Person, and (Z) agrees that
it will obtain from each of its Transferees to which it transfers an
interest in the Transferred Certificates, 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).
[TRANSFEREE]
By:____________________________________
Name:
Title:
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS [R] [LR] CERTIFICATES
STATE OF )
) ss.:
COUNTY OF )
____________________, being first duly sworn, deposes and says
that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2006-C3,
Class [R] [LR], evidencing a __% Percentage Interest in such Class (the
"Residual Interest Certificates")), a _________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be,
a "Permitted Transferee" and will endeavor to remain a "Permitted Transferee"
for so long as it holds the Residual Interest Certificates, and (ii) is
acquiring the Residual Interest Certificates for its own account or for the
account of another prospective transferee from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any Person other than a Disqualified Organization, a possession
of the United States, Non-United States Tax Person or domestic partnership whose
beneficial interests are not all held by United States Tax Person. (For this
purpose, a "Disqualified Organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. The Transferee is aware (i) of the tax that would be imposed
under the Code on transfers of the Residual Interest Certificates to
non-Permitted Transferees; (ii) that such tax would be on the transferor or, if
such transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Interest Certificates may be a "noneconomic residual interest" within the
meaning of Treasury regulation Section 1.860E-1(c), and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer is to enable the transferor to impede the assessment or collection of
tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Interest Certificates if at any time during the
taxable year of the pass-through entity a non-Permitted Transferee is the record
holder of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Interest Certificates by the Transferee
unless the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Interest Certificates will
only be owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section 5.02(d)
of the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Interest Certificates (in particular, clause (ii)(A) of
Section 5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificates to a Person other than the Transferee and clause [(ii)(B)]
of Section 5.02(d) which authorizes the Trustee to negotiate a mandatory sale of
the Residual Interest Certificates, in either case, in the event that the
Transferee holds such Residual Interest Certificates in violation of Section
5.02(d)); and the Transferee expressly agrees to be bound by and to comply with
such provisions.
9. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
10. The Transferee will not cause income from the Residual
Interest Certificate to be attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other United States Person.
11. Check the applicable paragraph:
[ ] The present value of the anticipated tax liabilities
associated with holding the Residual Interest Certificate does not exceed the
sum of:
(i) the present value of any consideration given to the
Transferee to acquire such Residual Interest
Certificate;
(ii) the present value of the expected future
distributions on such Residual Interest Certificate;
and
(iii) the present value of the anticipated tax
savings associated with holding such Residual
Interest Certificates as the related Trust REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to pay tax at
the highest rate currently specified in Section 11(b) of the Code (but the tax
rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Transferee.
[_] The transfer of the Residual Interest Certificate complies
with U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), as to which income from the
Residual Interest Certificates will only be taxed in
the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of
the transfer, the Transferee had gross assets for
financial reporting purposes (excluding any
obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Interest
Certificates only to another "eligible corporation,"
as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies
the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S.
Treasury Regulations; and
(iv) the Transferee determined the consideration paid to
it to acquire the Residual Interest Certificates
based on reasonable market assumptions (including,
but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other
factors specific to the Transferee) that it has
determined in good faith.
[_] None of the above.
The Transferee understands that a United States Tax Person is: a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in, or under the laws of, the United States, any
state thereof or the District of Columbia, an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States or a trust as to which (i) a court in
the United States is able to exercise primary supervision over the
administration of the trust and (ii) one or more United States fiduciaries have
the right to control all substantial decisions of the trust.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to the authority of its Board of Directors,
by its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ______ day of ______________.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_______________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ______________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee
Subscribed and sworn before me this ______ day of
__________________, ________.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My Commission expires the _________ day of ___________, 20__.
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS [R] [LR] CERTIFICATES
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services, CSMC 2006-C3
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3, Class [R] [LR] Certificates, evidencing a ____%
Percentage Interest in such Class (the "Residual Interest
Certificates")
---------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Residual Interest Certificates, pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as Master Servicer (the "Master Servicer"), and
Special Servicer (the "Special Servicer"), and Wells Fargo Bank, N.A. as Trustee
(the "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 H-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 the Transferee is classified as a
partnership under the Code) as contemplated by Treasury regulation 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 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,
By:____________________________________
(Transferor)
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Moody's Investor's Service
99 Church Street
New York, NY 10007
Attention: __________________
Standard & Poor's Ratings Services
55 Water Street
New York, New York 10041
Attention: __________________
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3
-----------------------------------------------------
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the
Pooling and Servicing Agreement, dated as of June 1, 2006 (the "Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as Master Servicer (the "Master Servicer"), and
Special Servicer (the "Special Servicer"), and the undersigned as trustee, and
relating to Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2006-C3 (the "Certificates").
Capitalized terms used but not otherwise defined herein shall have respective
meanings assigned to them in the Agreement.
Notice is hereby given that the Controlling Class Representative
has designated ________________________ to serve as the Special Servicer under
the Agreement.
The designation of ____________________________ as Special
Servicer will become final if certain conditions are met and each Rating Agency
delivers to Wells Fargo Bank, N.A., the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
Special Servicer were to serve as such, such event would not result in an
Adverse Rating Event with respect to any Class of the Certificates. Accordingly,
such confirmation is hereby requested as soon as possible.
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,
____________________________________
____________________________________
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By:____________________________________
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES
By:____________________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[SPECIAL SERVICER]
[DEPOSITOR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3
-----------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement,
dated as of June 1, 2006, relating to Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2006-C3
(the "Agreement"), the undersigned hereby agrees with all the other parties to
the Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges and agrees 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. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 2.06 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
____________________________________
By:____________________________________
Name:
Title:
EXHIBIT J
[Reserved]
EXHIBIT K-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, MD 21045-1951
Attention: Corporate Trust Services, CSMC 2006-C3
Midland Loan Services, Inc.
10851 Mastin, Building 82, 7th Floor
Overland Park, Kansas 66210
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3
-----------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as
of June 1, 2006 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as Master Servicer (the "Master Servicer"), and Special
Servicer (the "Special Servicer"), and Wells Fargo Bank, N.A. as Trustee (the
"Trustee"), with respect to the Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 2006-C3 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial holder] of
[$___________ aggregate [Certificate Principal
Balance/Certificate Notional Amount] of] [a ___% Percentage
Interest in] the Class ____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information") solely for use in
evaluating investment in the Certificates:
___ The information on the applicable Master Servicer's
Internet Website pursuant to Section 3.12(d) of the
Pooling and Servicing Agreement.
___ The information on the Trustee's Internet Website
pursuant to Section 4.02(a) of the Pooling and
Servicing Agreement.
___ The information identified on the schedule attached
hereto pursuant to Section 8.12(b) of the Pooling
and Servicing Agreement.
3. In consideration of the Master Servicer's or Trustee'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
the Information), and such Information will not, without
the prior written consent of the Master Servicer or
Trustee, 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; and provided
that the undersigned may provide all or any part of the
Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any
provision of the Securities Act of 1933, as amended (the
"Securities Act"), or the Securities Exchange Act of 1934,
as amended, or would require registration of any
Non-Registered Certificate (as defined in the Pooling and
Servicing Agreement) pursuant to Section 5 of the
Securities Act.
The undersigned hereby acknowledges and agrees that:
Neither the Master Servicer nor the Trustee will make any
representations or warranties as to the accuracy or completeness of, and will
assume no responsibility for, any report, document or other information
delivered pursuant to this request or made available on its respective Website;
Neither the Master Servicer nor the Trustee has undertaken any
obligation to verify the accuracy or completeness of any information provided by
a Borrower, a third party, each other or any other Person that is included in
any report, document or other information delivered pursuant to this request or
made available on its respective Website;
Any transmittal of any report, document or other information to
the undersigned by the Master Servicer or the Trustee is subject to, which
transmittal may (but need not be) accompanied by a letter containing, the
following provision:
By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict any person
who possesses material, non-public information regarding the Trust which issued
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2006-C3, from purchasing or selling such
Certificates in circumstances where the other party to the transaction is not
also in possession of such information. You also acknowledge and agree that such
information is being provided to you for the purposes of, and such information
may be used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein; and
When delivering any report, document or other information pursuant
to this request, the Master Servicer or the Trustee may (i) indicate the source
thereof and may affix thereto any disclaimer it deems appropriate in its
discretion and (ii) contemporaneously provide such report, document or
information to the Depositor, the Trustee, any Underwriter, any Rating Agency or
Certificateholders or Certificate Owners.
The undersigned agrees to indemnify and hold harmless the Master
Servicer, the Trustee, the Trust and the Depositor from any damage, loss, cost
or liability (including legal fees and expenses and the cost of enforcing this
indemnity) arising out of or resulting from any unauthorized use or disclosure
of the Information by Investor or any of its Representatives. The undersigned
also acknowledges and agrees that money damages would be both incalculable and
an insufficient remedy for any breach of the terms of this letter by the
undersigned or any of its Representatives and that the Master Servicer, the
Trustee, or the Trust may seek equitable relief, including injunction and
specific performance, as a remedy for any such breach. Such remedies are not the
exclusive remedies for a breach of this letter but are in addition to all other
remedies available at law or equity.
Capitalized terms used in this letter but not defined have the
respective meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[CERTIFICATEHOLDER] [BENEFICIAL HOLDER OF
A CERTIFICATE]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT K-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, MD 21045-1951
Attention: Corporate Trust Services, CSMC 2006-C3
Midland Loan Services, Inc.
10851 Mastin, Building 82, 7th Floor
Overland Park, Kansas 66210
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2006-C3
-----------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as
of June 1, 2006 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as Master Servicer (the "Master Servicer"), and Special
Servicer (the "Special Servicer"), and Wells Fargo Bank, N.A., as Trustee (the
"Trustee"), with respect to the Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 2006-C3 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class
____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information") for use in evaluating such
possible investment:
___ The information on the Trustee's Internet Website
pursuant to Section 4.02(a) of the Pooling and
Servicing Agreement.
___ The information identified on the schedule attached
hereto pursuant to Section 8.12(b) of the Pooling
and Servicing Agreement.
3. In consideration of the Trustee'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 paragraphs 1 and 2), and such
Information will not, without the prior written consent of
the Trustee, 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
in the event the undersigned purchases any Certificate or
any interest in any Certificate, 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; and provided that the undersigned may
provide all or any part of the Information to its auditors,
legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any
provision of the Securities Act of 1933, as amended (the
"Securities Act"), or the Securities Exchange Act of 1934,
as amended, or would require registration of any
Non-Registered Certificate (as defined in the Pooling and
Servicing Agreement) pursuant to Section 5 of the
Securities Act.
The undersigned hereby acknowledges and agrees that:
Neither the Master Servicer nor the Trustee will make any
representations or warranties as to the accuracy or completeness of, and will
assume no responsibility for, any report, document or other information
delivered pursuant to this request or made available on its respective Website;
Neither the Master Servicer nor the Trustee has undertaken any
obligation to verify the accuracy or completeness of any information provided by
a Borrower, a third party, each other or any other Person that is included in
any report, document or other information delivered pursuant to this request or
made available on its respective Website;
Any transmittal of any report, document or other information to
the undersigned by the Master Servicer or the Trustee is subject to, which
transmittal may (but need not be) accompanied by a letter containing, the
following provision:
By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict any person
who possesses material, non-public information regarding the Trust which issued
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2006-C3, from purchasing or selling such
Certificates in circumstances where the other party to the transaction is not
also in possession of such information. You also acknowledge and agree that such
information is being provided to you for the purposes of, and such information
may be used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein; and
When delivering any report, document or other information pursuant
to this request, the Master Servicer or the Trustee may (i) indicate the source
thereof and may affix thereto any disclaimer it deems appropriate in its
discretion and (ii) contemporaneously provide such report, document or
information to the Depositor, the Trustee, any Underwriter, any Rating Agency or
Certificateholders or Certificate Owners.
The undersigned agrees to indemnify and hold harmless the Master
Servicer, the Trustee, the Trust and the Depositor from any damage, loss, cost
or liability (including legal fees and expenses and the cost of enforcing this
indemnity) arising out of or resulting from any unauthorized use or disclosure
of the Information by Investor or any of its Representatives. Investor also
acknowledges and agrees that money damages would be both incalculable and an
insufficient remedy for any breach of the terms of this letter by the
undersigned or any of its Representatives and that the Master Servicer, the
Trustee, or the Trust may seek equitable relief, including injunction and
specific performance, as a remedy for any such breach. Such remedies are not the
exclusive remedies for a breach of this letter but are in addition to all other
remedies available at law or equity.
Capitalized terms used in this letter but not defined have the
respective meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT L
SCHEDULE OF DESIGNATED SUB-SERVICERS
EXHIBIT M-1
FORM OF DEPOSITOR CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
Re: Credit Suisse Commercial Mortgage Trust 2006-C3 (the
"Trust"), Commercial Mortgage Pass-Through Certificates,
Series 2006-C3
I, [identify the certifying individual], a [title] of Credit
Suisse First Boston Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all
reports Form 10-D required to be filed in respect of periods included in
the year covered by this annual report, of the Trust;
2. Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this annual report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period
covered by this report is included in the Exchange Act periodic reports;
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 report, the servicers have
fulfilled their obligations under the pooling and servicing agreement;
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.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Midland Loan Services,
Inc. and Wells Fargo Bank, N.A.
Date: _____________________________
___________________________________
President and Chief Executive Officer
Credit Suisse First Boston Mortgage Securities Corp.
EXHIBIT M-2
FORM OF TRUSTEE BACKUP CERTIFICATION
Re: Credit Suisse Commercial Mortgage Trust 2006-C3 (the
"Trust"), Commercial Mortgage Pass-Through Certificates,
Series 2006-C3
The undersigned, __________, a __________ of WELLS FARGO BANK, N.A., on
behalf of WELLS FARGO BANK, N.A., as Trustee (the "Trustee"), under that
certain pooling and servicing agreement, dated as of June 1, 2006, (the
"Pooling and Servicing Agreement") entered into by Credit Suisse First
Boston Mortgage Securities Corp., (the "Depositor"), Midland Loan
Services, Inc., as master servicer (the "Master Servicer"), and as
special servicer (the "Special Servicer"), and the Trustee, certify to [
], the Depositor and its officers, directors and affiliates, to the
extent that the following information is within our normal area of
responsibilities and duties under the Pooling and Servicing Agreement,
and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year [20___] (the "Annual Report"), and all reports
on Form 10-D containing statements to certificateholders
filed in respect of periods included in the year covered by
the Annual Report (collectively with the Annual Report, the
"Reports"), of the Trust;
2. Based on my knowledge, the information in the Reports, to
the extent prepared by the Trustee (but not including any
information provided to the Trustee by the Master Servicer
or the Special Servicer, other than to the extent that such
information has been aggregated or manipulated by Trustee),
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 last day of the period covered by the Annual
Report; and
3. Based on my knowledge, all of the distribution information
required to be provided by the Trustee under the Pooling
and Servicing Agreement for inclusion in the Reports is
included in the Reports.
Date: _________________________
WELLS FARGO BANK, N.A.
_______________________________
[Signature] [Title]
EXHIBIT M-3
FORM OF MASTER SERVICER BACKUP CERTIFICATION
Re: Credit Suisse Commercial Mortgage Trust 2006-C3 (the
"Trust"), Commercial Mortgage Pass-Through Certificates,
Series 2006-C3
I, [identify the certifying individual], a [_______________] of MIDLAND
LOAN SERVICES, INC., a Delaware corporation, (the "Master Servicer") as
Master Servicer under that certain pooling and servicing agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Credit
Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"), the Master Servicer, Midland Loan Services, Inc., as
special servicer (the "Special Servicer"), and Wells Fargo Bank, N.A., as
trustee (the "Trustee"), on behalf of the Master Servicer certify to
[Name of Certifying Person(s) for Sarbanes Oxley Certification], the
Depositor, and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification
(capitalized terms used herein shall have the meanings assigned to such
terms in the Pooling and Servicing Agreement), that:
1. Based on my knowledge, (a) assuming the accuracy of the
statements required to be made in the corresponding
certificate of the Special Servicer pursuant to Section
12.08 of the Pooling and Servicing Agreement and (b)
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 servicer to
prepare the servicing reports; provided, however, the
Master Servicer shall provide any information of which the
Master Servicer has knowledge, to the extent such
information updates the Mortgage Information and is
required to be provided by the Master Servicer pursuant to
the Pooling and Servicing Agreement), the servicing
information in the servicing reports taken as a whole, does
not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
made, in light of the circumstances under which such
statements were made, not misleading with respect to the
period covered by this report;
2. Based on my knowledge and assuming the accuracy of the
statements required to be made in the corresponding
certificate of the Special Servicer pursuant to Section
12.08 of the Pooling and Servicing Agreement, all servicing
information required to be provided to the Trustee by the
Master Servicer under the Pooling and Servicing Agreement
for inclusion in the reports to be filed by the Trustee
with the Securities and Exchange Commission is included in
the servicing reports delivered by the Master Servicer to
the Trustee;
3. I am responsible for reviewing the activities performed by
the Master Servicer under the Pooling and Servicing
Agreement and based upon my knowledge and the annual
compliance reviews conducted in preparing the servicer
compliance statements required in this report under Item
1123 of Regulation AB with respect to the Master Servicer,
and except as disclosed in the compliance certificate
delivered by the Master Servicer under Section 12.11 of the
Pooling and Servicing Agreement, the Master Servicer has
fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects;
4. 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 Master Servicer have been provided as
required by the Pooling and Servicing Agreement, except as
otherwise disclosed in the servicing reports. Any material
instances of noncompliance described in such reports have
been disclosed in the servicing reports; and
5. [If this certification is delivered by the Master Servicer,
add:] [In addition, notwithstanding the foregoing
certifications under clauses (1) and (2) above, the Master
Servicer does not make any certification under such clauses
(1) and (2) above with respect to the information in the
servicing reports delivered by the Master Servicer to the
Trustee referred to in such clauses (1) and (2) above that
is in turn dependent upon information provided by the
Special Servicer under the Pooling and Servicing Agreement
beyond the corresponding certification actually provided by
the Special Servicer pursuant to Section 12.08 of the
Pooling and Servicing Agreement. Further, notwithstanding
the foregoing certifications, the Master Servicer does not
make any certification under the foregoing clauses (1)
through (3) that is in turn dependent (i) upon information
required to be provided by any Sub-Servicer acting under a
Sub-Servicing Agreement that the Master Servicer entered
into in connection with the issuance of the Certificates,
or upon the performance by any such Sub-Servicer of its
obligations pursuant to any such Sub-Servicing Agreement,
in each case beyond the respective backup certifications
actually provided by such Sub-Servicer to the Master
Servicer with respect to the information that is the
subject of such certification, or (ii) upon information
required to be provided by the Non-Serviced Mortgage Loan
Servicer or upon the performance by the Non-Serviced
Mortgage Loan Servicer of its obligations pursuant to the
Non-Serviced Mortgage Loan Pooling and Servicing Agreement,
in each case beyond the backup certification actually
provided by the Non-Serviced Mortgage Loan Servicer to the
Master Servicer with respect to the information that is the
subject of such certification; provided that this clause
(ii) shall not apply in the event the Master Servicer is,
or is an Affiliate of, the Non-Serviced Mortgage Loan
Servicer.]
[If this certification is delivered by a Sub-Servicer
retained by the Master Servicer, add:] [In addition,
notwithstanding the foregoing certifications under clauses
(2) and (3) above, the Master Servicer does not make any
certification under such clauses (2) and (3) above with
respect to the information in the servicing reports
delivered by the Master Servicer to the Trustee referred to
in such clauses (2) and (3) above that is in turn dependent
upon information provided by the Special Servicer under the
Pooling and Servicing Agreement beyond the corresponding
certification actually provided by the Special Servicer
pursuant to Section 12.08 of the Pooling and Servicing
Agreement.]
[In giving the certification above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [name(s) of servicer,
sub-servicer or co-servicer]]
Date: _________________________
MIDLAND LOAN SERVICES, INC.
By: _____________________________
Name:
Title:
EXHIBIT M-4
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
Re: Credit Suisse Commercial Mortgage Trust 2006-C3 (the
"Trust"), Commercial Mortgage Pass-Through Certificates,
Series 2006-C3
I, [identify the certifying individual], a [_______________ ] of Midland
Loan Services, Inc. (the "Special Servicer") as Special Servicer under
that certain pooling and servicing agreement dated as of June 1, 2006
(the "Pooling and Servicing Agreement"), among Credit Suisse First Boston
Mortgage Securities Corp., as depositor (the "Depositor"), Midland Loan
Services, Inc., as master servicer (the "Master Servicer"), the Special
Servicer, and Wells Fargo Bank, N.A., as trustee (the "Trustee"), on
behalf of the Special Servicer certify to [Name of Certifying Person(s)
for Sarbanes Oxley Certification], the Depositor, and its officers,
directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. Based on my knowledge, with respect to the period ending
December 31, 20[__] (the "Relevant Period"), all servicing
information and all required reports required to be
submitted by the Special Servicer to the Master Servicer or
Trustee pursuant to the Pooling and Servicing Agreement
(the "Special Servicer Reports") for inclusion in the
annual report on Form 10-K for the Relevant Period and
inclusion in all reports on Form 8-K have been submitted by
the Special Servicer to the Master Servicer or the Trustee,
as applicable, for inclusion in these reports;
2. Based on my knowledge, the information contained in the
Special Servicer Reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements
made, in light of the circumstances under which such
statements were made, not misleading as of the last day of
the period ending December 31, 20[__]; and
3. Based on my knowledge and the annual compliance review
required under Section 11.11 of the Pooling and Servicing
Agreement, during the Relevant Period the Special Servicer
has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects, except as
disclosed in the annual officer's certificate required
under such Section 11.11.
Date: _________________________
MIDLAND LOAN SERVICES, INC.
By:_____________________________
Name:
Title:
EXHIBIT N
Form of S&P Defeasance Certification
EXHIBIT O
[Reserved]
EXHIBIT U
Relevant Servicing Criteria
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
--------------------------------------------------------------
The assessment of compliance to be delivered shall address, at a
minimum, the criteria identified below as "Relevant Servicing Criteria" (with
each Servicing Function Participant deemed to be responsible for the items
applicable to the functions it is performing and for which the party that
retained such Servicing Function Participant is responsible):
--------------------------------------------------------------------------------------------------
Relevant Servicing Criteria Applicable
Party(ies)
--------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Trustee
performance or other triggers and events of default in Master Servicer
accordance with the transaction agreements. Special Servicer
--------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to Trustee
third parties, policies and procedures are instituted to Master Servicer
monitor the third party's performance and compliance Special Servicer
with such Special servicing activities.
--------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain N/A
a back-up servicer for the mortgage loans are maintained.
--------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Master Servicer
effect on the party participating in the servicing Special Servicer
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
--------------------------------------------------------------------------------------------------
Cash Collection and Administration
--------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the Trustee
appropriate custodial bank accounts and related bank Master Servicer
clearing accounts no more than two business days Special Servicer
following receipt, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an Trustee
obligor or to an investor are made only by authorized
personnel.
--------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, Master Servicer
cash flows or distributions, and any interest or other Special Servicer
fees charged for such advances, are made, reviewed and Trustee
approved as specified in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash Trustee
reserve accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained (e.g., Special Servicer
with respect to commingling of cash) as set forth in the
transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a Trustee
federally insured depository institution as set Master Servicer
forth in the transaction agreements. For Special Servicer
purposes of this criterion, "federally insured
depository institution" with respect to a foreign
financial institution means a foreign financial
institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
--------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Master Servicer
unauthorized access. Special Servicer
Trustee
--------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis Trustee
for all asset-backed securities related bank Master Servicer
accounts, including custodial accounts and Special Servicer
related bank clearing accounts. These
reconciliations 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.
--------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed Trustee
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such
reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information
calculated in accordance with the terms specified
in the transaction agreements; (C) are filed with
the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid
principal balance and number of mortgage loans
serviced by the Servicer.
--------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Trustee
accordance 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 Trustee
business 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 Trustee
agree with 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 Trustee
as required by the transaction agreements or related Master Servicer
mortgage loan documents. Special Servicer
--------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are Trustee
safeguarded as required by the transaction
agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the mortgage Trustee
loan pool are made, reviewed and approved in accordance Special Servicer
with any conditions or requirements in the transaction
agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any Master Servicer
payoffs, made in accordance with the related
mortgage loan documents are posted to 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 Servicer's records regarding the mortgage loans agree Master Servicer
with the 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 Master Servicer
obligor's mortgage loans (e.g., loan modifications or Special Servicer
re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements
and related mortgage loan documents.
--------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., Special Servicer
forbearance plans, 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 Master Servicer
maintained during the period a mortgage loan is Special Servicer
delinquent in accordance with the 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 N/A
mortgage loans with variable rates are computed based on the
related mortgage loan documents.
--------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor Master Servicer
(such as escrow 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 loan,
or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as Master Servicer
tax or insurance 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 Master Servicer
to be made on behalf of an obligor are paid from the Special Servicer
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 Master Servicer
within two 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 Master Servicer
accounts are recognized and recorded in Special Servicer
accordance with the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in N/A
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained as set forth in the transaction agreements.
--------------------------------------------------------------------------------------------------
EXHIBIT V
Additional Form 10-D Disclosure
Item on Form 10-D Responsible Parties
--------------------------------------- --------------------------------------
Item 1: Distribution and Pool Master Servicer (only with respect to
Performance Information Item 1121(a)(12) and only as to
non-specially serviced loans)
Special Servicer (only with respect to
Only with respect to any information Item 1121(a)(12) as to specially
required by 1121 which is NOT included serviced loans)
on the Monthly Statement Trustee
Depositor
Item 2: Legal Proceedings (i) All parties to the Pooling and
Servicing Agreement (as to
per Item 1117 of Reg AB (to the extent themselves), (ii) the Trustee, the
material to Certificateholders) Master Servicer and the Special
Servicer (in each case, if Trustee is
not also a named party) as to the
issuing entity, (iii) the Depositor as
to the sponsor, any 1110(b)
originator, and any 1100(d)(1) party
Item 3: Sale of Securities and Use of Depositor
Proceeds
Item 4: Defaults Upon Senior Securities Trustee
Item 5: Submission of Matters to a Vote Trustee
of Security Holders
Item 6: Significant Obligors of Pool
Assets
Item 7: Significant Enhancement Depositor
Provider Information
Item 8: Other Information (information Any party responsible for disclosure
required to be disclosed on items on Form 8-K
Form 8-K that was not properly
disclosed)
Item 9: Exhibits Trustee
Depositor
EXHIBIT W
Additional Form 10-K Disclosure
Item on Form 10-K Party Responsible
---------------------------------------- ---------------------------------------
Item 1B: Unresolved Staff Comments Depositor
Item 9B: Other Information (information Any party responsible for disclosure
required to be disclosed on Form of such items on
8-K Form 8-K that was not
properly disclosed)
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1117 of Reg AB (to Servicing Agreement (as to
the extent material to themselves), (ii) the Trustee, the
Certificateholders) Master Servicer and the Special
Servicer (in each case, if Trustee is
not also a named party) as to the
issuing entity, (iii) the Depositor as
to the sponsor, any 1110(b)
originator, and any 1100(d)(1) party
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1119 of Reg AB (to Servicing Agreement as to themselves;
the extent material to provided however that as to the Master
Certificateholders) Servicer, only to the extent material
to Certificateholders and only as to
affiliations under 1119(a) with the
Trustee, Special Servicer or a
1108(a)(3) Sub-Servicer, and as to the
Special Servicer, only to the extent
material to Certificateholders and
only as to affiliations under 1119(a)
with the Trustee, Master Servicer or a
1108(a)(3) Sub-Servicer, (ii) the
Trustee, the Special Servicer and the
Master Servicer as to the issuing
entity, (iii) the Depositor as to the
sponsor, originator, significant
obligor, enhancement or support
provider
Additional Item:
Disclosure per Item 1112(b) of Reg AB
The 770 Broadway Property and the Depositor/Special Servicer (only for
Babcock & Brown FX 2 Properties they REO Properties and only to the extent
are identified by the Depositor as the Special Servicer is in possession
significant obligors of such items required under Item
1112(b) of Reg AB)
Additional Item: Trustee
Disclosure per Items 1114(b)(2) and
1115(b) of Reg AB
EXHIBIT X
Form 8-K Disclosure Information
Item on Form 8-K Party Responsible
--------------------------------------- ------------------------------------
Item 1.01: Entry into a Material All parties to this Agreement only as
Definitive Agreement to agreements such entity is a party
to or entered into on behalf of the
Trust Fund
Item 1.02 Termination of a Material All parties to this Agreement only as
Definitive Agreement to agreements such entity is a party
to or entered into on behalf of the
Trust Fund
Item 1.03 Bankruptcy or Receivership Depositor
Item 2.04 Triggering Events that Trustee
Accelerate or Increase a
Direct Financial Obligation
or an Obligation under an
Off-Balance Sheet Arrangement
Item 3.03 Material Modification to Trustee
Rights of Security Holders
Item 5.03 Amendments of Articles of Depositor
Incorporation or Bylaws;
Change of Fiscal Year
Item 6.01 ABS Informational and Depositor
Computational Material
Item 6.02 Change of Servicer or Trustee Master Servicer (as to itself or a
Sub-Servicer retained by the Master
Servicer)/Special Servicer (as to
itself or a Sub-Servicer retained by
the Special Servicer)
Trustee
Depositor
Item 6.03 Change in Credit Enhancement Depositor
or External Support Trustee
Item 6.04 Failure to Make a Required Trustee
Distribution
Item 6.05 Securities Act Updating Depositor
Disclosure
Item 7.01 Reg FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
EXHIBIT Y
Additional Disclosure Notification
**SEND VIA FAX TO 410-715-2380 AND VIA EMAIL TO
cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
Wells Fargo Bank, N.A., as Trustee
9062 Old Annapolis Road
Columbia, Maryland 21045
Attn: Corporate Trust Services- [DEAL NAME]--SEC REPORT PROCESSING
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, , dated
as of [ ][ ], 2006, among [ ], as [ &nb], [ ], as [ ],
[ ], as [ ] and [ ], as [ ]. the undersigned, as [ ],
hereby notifies you that certain events have come to our attention that [will]
[may] need to be disclosed on Form [10-D][10-K][8-K]. Description of Additional
Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to Credit Suisse
First Boston Mortgage Securities Corp., Eleven Madison Avenue, New York, New
York 10010.
[NAME OF PARTY],
as [role]
By: ___________________________________
Name:
Title: