(MULTICURRENCY-CROSS BORDER)
SCHEDULE
to the
ISDA 1992 MASTER AGREEMENT
dated as of December 12, 2006
between
XXXXXXX XXXXX CAPITAL SERVICES, INC.,
A DELAWARE CORPORATION ("PARTY A"),
and
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-4,
A COMMON LAW TRUST ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF NEW YORK ("PARTY B")
The only Transaction governed hereunder is the Transaction evidenced by
the Confirmation identified by Transaction Reference Number 06DL28454
(relating to the Class AJ-FL Certificates), dated December 12, 2006
between Party A and Party B.
PART 1: TERMINATION PROVISIONS
For the purposes of this Agreement:-
(a) "SPECIFIED ENTITY" will not apply to Party A or Party B for any purpose.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) EVENTS OF DEFAULT.
The statement below that an Event of Default will apply to a specific
party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party means
that the other party shall not have such rights.
(i) The "FAILURE TO PAY OR DELIVER" provisions of Section 5(a)(i)
will apply to Party A and will apply to Party B; provided,
however, that Section 5(a)(i) is hereby amended by replacing the
word "third" with the word "first"; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i), any
failure by Party A to comply with or perform any obligation to
be complied with or performed by Party A under the Credit
Support Annex shall not constitute an Event of Default under
Section 5(a)(i) unless (A) a Required Ratings Downgrade Event
has occurred and been continuing for 30 or more Local Business
Days and (B) such failure is not remedied on or before the third
Local Business Day after notice of such failure is given to
Party A.
(ii) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party B.
(iii) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that
Section 5(a)(iii)(1) will apply to Party B solely in respect of
Party B's obligations under Paragraph 3(b) of the Credit Support
Annex; provided, however, that notwithstanding anything to the
contrary in Section 5(a)(iii)(1), any failure by Party A to
comply with or perform any obligation to be complied with or
performed by Party A under the Credit Support Annex shall not
constitute an Event of Default under Section 5(a)(iii) unless
(A) a Required Ratings Downgrade Event has occurred and been
continuing for 30 or more Local Business Days and (B) such
failure is not remedied on or before the third Local Business
Day after notice of such failure is given to Party A.
(iv) The "MISREPRESENTATION" provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party B.
(v) The "DEFAULT UNDER SPECIFIED TRANSACTION" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
(vi) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to
Party A and will not apply to Party B. For purposes of Section
5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in
Section 14.
"Threshold Amount" means with respect to Party A an amount equal
to three percent (3%) of the Shareholders' Equity of Party A or,
if applicable, the Eligible Guarantor.
"Shareholders' Equity" means with respect to an entity, at any
time, the sum (as shown in the most recent annual audited
financial statements of such entity) of (i) its capital stock
(including preferred stock) outstanding, taken at par value,
(ii) its capital surplus and (iii) its retained earnings, minus
(iv) treasury stock, each to be determined in accordance with
generally accepted accounting principles in the country in which
Party A is organized.
(vii) The "BANKRUPTCY" provisions of Section 5(a)(vii) will apply to
Party A and will apply to Party B except that the provisions of
Section 5(a)(vii)(2), (6) (to the extent that such provisions
refer to any appointment contemplated or effected by the Pooling
and Servicing Agreement or any appointment to which Party B has
not become subject), (7) and (9) will not apply to Party B;
provided that, with respect to Party B only, (i) Section
5(a)(vii)(4) is hereby amended by adding after the words
"against it" the words "(excluding any proceeding or petition
instituted or presented by Party A or its Affiliates)" and (ii)
Section 5(a)(vii)(8) is hereby amended by deleting the words "to
(7) (inclusive)" and inserting lieu thereof ", (3), (4) as
amended, (5) and (6) as amended".
(viii) The "MERGER WITHOUT ASSUMPTION" provisions of Section 5(a)(viii)
will apply to Party A and will apply to Party B.
(d) TERMINATION EVENTS.
The statement below that a Termination Event will apply to a specific
party means that upon the occurrence of such a Termination Event, if
such specific party is the Affected Party with respect to a Tax Event,
the Burdened Party with respect to a Tax Event Upon Merger (except as
noted below) or the non-Affected Party with respect to a Credit Event
Upon Merger, as the case may be, such specific party shall have the
right to designate an Early Termination Date in accordance with Section
6 of this Agreement; conversely, the statement below that such an event
will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to "Illegality" the
statement that such event will apply to a specific party means that upon
the occurrence of such a Termination Event with respect to such party,
either party shall have the right to designate an Early Termination Date
in accordance with Section 6 of this Agreement.
(i) The "ILLEGALITY" provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
(ii) The "TAX EVENT" provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section
5(b)(ii) to Party A, Section 5(b)(ii) is hereby amended by
deleting the words "(x) any action taken by a taxing authority,
or brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (y)", and the "TAX EVENT" provisions of
Section 5(b)(ii) will apply to Party B.
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(iii) The "TAX EVENT UPON MERGER" provisions of Section 5(b)(iii) will
apply to Party A and will apply to Party B, provided that Party
A shall not be entitled to designate an Early Termination Date
by reason of a Tax Event upon Merger in respect of which it is
the Affected Party.
(iv) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the
event of a Derivative Provider Trigger Event, the following
provisions will apply:
(A) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"MARKET QUOTATION" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by
a Reference Market-maker that is an Eligible Replacement,
(2) for an amount that would be paid to Party B (expressed
as a negative number) or by Party B (expressed as a
positive number) in consideration of an agreement between
Party B and such Reference Market-maker to enter into a
Replacement Transaction, and (3) made on the basis that
Unpaid Amounts in respect of the Terminated Transaction or
group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be
included.
(B) The definition of Settlement Amount shall be deleted in
its entirety and replaced with the following:
"SETTLEMENT AMOUNT" means, with respect to any Early
Termination Date, an amount (as determined by Party B)
equal to:
(a) If a Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
accepted by Party B so as to become legally binding
on or before the day falling ten Local Business Days
after the day on which the Early Termination Date is
designated, or such later day as Party B may specify
in writing to Party A, but in either case no later
than one Local Business Day prior to the Early
Termination Date (such day, the "Latest Settlement
Amount Determination Day"), the Termination Currency
Equivalent of the amount (whether positive or
negative) of such Market Quotation;
(b) If, on the Latest Settlement Amount Determination
Day, no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions has
been accepted by Party B so as to become legally
binding and one or more Market Quotations from
Approved Replacements have been made and remain
capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal the Termination
Currency Equivalent of the amount (whether positive
or negative) of the lowest of such Market Quotations
(for the avoidance of doubt, the lowest of such
Market Quotations shall be the lowest Market
Quotation of such Market Quotations expressed as a
positive number or, if any of such Market Quotations
is expressed as a negative number, the Market
Quotation expressed as a negative number with the
largest absolute value); or
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(c) If, on the Latest Settlement Amount Determination
Day, no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
accepted by Party B so as to become legally binding
and no Market Quotation from an Approved Replacement
remains capable of becoming legally binding upon
acceptance, the Settlement Amount shall equal Party
B's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for the relevant
Terminated Transaction or group of Terminated
Transactions.
(C) If Party B requests Party A in writing to obtain Market
Quotations, Party A shall use its reasonable efforts to do
so before the Latest Settlement Amount Determination Day.
(D) If the Settlement Amount is a negative number, Section
6(e)(i)(3) shall be deleted in its entirety and replaced
with the following:
"(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, (I) Party B shall pay
to Party A an amount equal to the absolute value of the
Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the
Termination Currency Equivalent of the Unpaid Amounts
owing to Party A and (III) Party A shall pay to Party B
the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided, however, that (x) the amounts
payable under the immediately preceding clauses (II) and
(III) shall be subject to netting in accordance with
Section 2(c) of this Agreement and (y) notwithstanding any
other provision of this Agreement, any amount payable by
Party A under the immediately preceding clause (III) shall
not be netted-off against any amount payable by Party B
under the immediately preceding clause (I)."
(E) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market Quotations
from Approved Replacements remain capable of becoming
legally binding upon acceptance, Party B shall be entitled
to accept only the lowest of such Market Quotations (for
the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of such
Market Quotations expressed as a positive number or, if
any of such Market Quotations is expressed as a negative
number, the Market Quotation expressed as a negative
number with the largest absolute value).
(F) Notwithstanding anything to the contrary herein, for the
purpose of Section 6(e), both Party A and Party B agree
that any amounts payable by the Trust or Party B to Party
A under Section 6(e), if any, in connection with any Event
of Default or Termination Event will be payable only if a
replacement swap counterparty is procured (which Party B
shall be obligated to attempt to procure in good faith and
in a reasonably commercial manner if not prohibited under
the Pooling and Servicing Agreement and not otherwise an
obligation of Party A hereunder, and provided that, for
the avoidance of doubt, if Party B is the Defaulting Party
or sole Affected Party, Party A shall have the right to
procure a replacement swap counterparty on Party B's
behalf to the extent such replacement complies with the
terms hereof and the Pooling and Servicing Agreement) and
only to the extent that Party B receives any payment from
such replacement swap counterparty as consideration for
entering into the replacement swap agreement (less any
costs or expenses incurred by Party B in connection
therewith). Notwithstanding anything to the contrary
herein, no termination payments payable by Party B
hereunder shall be netted against any amounts owed by
Party A hereunder.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means USD.
(h) ADDITIONAL TERMINATION EVENTS. Additional Termination Events will apply
as provided in Part 5(c).
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PART 2: TAX REPRESENTATIONS
(a) TAX REPRESENTATIONS.
(i) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement:
(A) Party A and Party B make the following representation(s):
It is not required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to
the other party under this Agreement. In making this
representation, it may rely on: the accuracy of any
representations made by the other party pursuant to
Section 3(f) of this Agreement; (ii) the satisfaction of
the agreement contained in Section 4(a)(i) or 4(a)(iii) of
this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the
satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement, provided that it shall
not be a breach of this representation where reliance is
placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
(ii) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
(A) Party A makes the following representation(s):
It is a corporation organized under the laws of the State
of Delaware.
(B) Party B makes the following representation(s):
It is a common law trust created under the laws of the
State of New York.
(b) TAX PROVISIONS.
(i) GROSS UP. Section 2(d)(i)(4) shall not apply to Party B as X,
and Section 2(d)(ii) shall not apply to Party B as Y, in each
case such that Party B shall not be required to pay any
additional amounts referred to therein.
(ii) INDEMNIFIABLE TAX. The definition of "Indemnifiable Tax" in
Section 14 is deleted in its entirety and replaced with the
following:
"INDEMNIFIABLE TAX" means, in relation to payments by Party A,
any Tax and, in relation to payments by Party B, no Tax.
5
PART 3: AGREEMENT TO DELIVER DOCUMENTS
(a) Tax forms, documents or certificates to be delivered are:
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PARTY REQUIRED TO DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
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Party A and Party B As required under Section 4(a)(i) of Promptly after the earlier
the Agreement, IRS Form W-9. of (i) Promptly upon
execution of this Agreement
(in the case of Party B,
promptly upon the making of
the REMIC election); and
promptly upon learning that
any form previously
provided by the party has
become obsolete or
incorrect.
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(b) Other Documents to be delivered are:
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PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH COVERED BY SECTION 3(D)
DELIVER DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
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Party A and Party B Any documents required or Upon execution. Yes
reasonably requested by the
receiving party to evidence
authority of the delivering party
or its Credit Support Provider,
if any, to execute and deliver
this Agreement, any Confirmation,
and any Credit Support Documents
to which it is a party, and to
evidence the authority of the
delivering party to its Credit
Support Provider to perform its
obligations under this Agreement,
such Confirmation and/or Credit
Support Document, as the case may
be.
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Party A and Party B A certificate of an authorized Upon execution Yes
officer of the party, as to the
incumbency and authority of the
respective officers of the party
signing this Agreement, any
relevant Credit Support Document,
or any Confirmation, as the case
may be.
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Party A Annual Report of Party A containing Annually, after Yes
consolidated financial statements becoming publicly
certified by independent certified available
public accountants and prepared in
accordance with generally accepted
accounting principles in the
country in which Party A is
organized.
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6
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Party A Quarterly Financial Statements of Quarterly, after Yes
Party A containing unaudited, becoming publicly
consolidated financial statements of available
Party A's fiscal quarter prepared in
accordance with generally accepted
accounting principles in the country
in which Party A is organized.
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Party A and Party B An opinion of counsel to such party Upon execution No
reasonably satisfactory in form and
substance to the other party
regarding the enforceability of this
Agreement, any Confirmation, and any
Credit Support Documents to which it
is a party.
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Party A A guarantee of Xxxxxxx Xxxxx & Co., Upon execution No
Inc.
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Party A An opinion of counsel to Party A's Upon execution No
guarantee.
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Party B Statements to Certificateholders of As soon as Yes
Party B available
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Party B Executed copy of the Pooling and Upon execution Yes
Servicing Agreement
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PART 4: MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purposes of Section 12(a) of this
Agreement:
Party A:
Address for notices or communications to Party A in respect of Section
5(a)(i) shall be sent to:-
Address: Xxxxxxx Xxxxx World Headquarters
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Swap Group
Facsimile No.: 000 000-0000
Telephone No.: 000 000-0000
(For all purposes)
In addition, in the case of notices or communications relating
to Section 5, 6, 11 or 13 of this Agreement, a second copy of
any such notice or communication shall be addressed to the
attention of Party A's legal department as follows:
Address: GMI Counsel
Xxxxxxx Xxxxx World Headquarters
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Swaps Legal
Facsimile No.: 000 000-0000
Party B:
Address for notices or communications to Party B:-
7
Address: ML-CFC Commercial Mortgage Trust 2006-4
c/o LaSalle Bank National Association, as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
ML-CFC Commercial Mortgage Trust 2006-4,
Commercial Mortgage Pass-Through Certificates,
Series 2006-4
Facsimile No.: (000) 000-0000
With a copy
to: Xxxxx X. Xxxxxxx, or Director, CMBS
Securitization
Address: Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) PROCESS AGENT. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not Applicable.
Party B appoints as its Process Agent:
ML-CFC Commercial Mortgage Trust 2006-4
c/o LaSalle Bank National Association, as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
ML-CFC Commercial Mortgage Trust 2006-4,
Commercial Mortgage Pass-Through Certificates,
Series 2006-4
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party B.
(f) CREDIT SUPPORT DOCUMENT.
Party A: (1) the Guarantee of Xxxxxxx Xxxxx & Co., Inc. dated
December 12, 2006 and (2) the Credit Support Annex.
Party B: (1) The Pooling and Servicing Agreement; provided that
only amounts with respect to (x) interest distributions
paid in respect of the Class AJ-FL REMIC II Regular
Interest on such Distribution Date and (y) Yield
Maintenance Charges and Prepayment Premiums on deposit in
the Floating Rate Account (as such terms are defined in
the Pooling and Servicing Agreement) held by the Trustee
under the Pooling and Servicing Agreement (such amounts,
the "Trust Estate") shall constitute security for the
obligations of Party B to Party A under this Agreement,
and the Pooling and Servicing Agreement shall be
considered a Credit Support Document with respect to Party
B only to the extent affecting or relating to such
security and (2) The Credit Support Annex, solely in
respect of Party B's obligation under Paragraph 3(b) of
the Credit Support Annex.
8
(g) CREDIT SUPPORT PROVIDER.
Party A: The guarantor under any guarantee in support of Party A's
obligations under this Agreement.
Party B: None.
(h) GOVERNING LAW. The parties to this Agreement hereby agree that the law
of the State of New York shall govern their rights and duties in whole,
without regard to the conflict of law provisions thereof other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will apply to the sole Transaction contemplated by this Agreement.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement, provided, however, that Party B shall be deemed to have no
Affiliates for purposes of this Agreement, including for purposes of
Section 6(b)(ii).
PART 5: OTHER PROVISIONS
(a) DEFINITIONS. Unless otherwise specified in a Confirmation, this
Agreement and each Transaction under this Agreement are subject to the
2000 ISDA Definitions as published and copyrighted in 2000 by the
International Swaps and Derivatives Association, Inc. (the
"DEFINITIONS"), and will be governed in all relevant respects by the
provisions set forth in the Definitions, without regard to any amendment
to the Definitions subsequent to the date hereof. The provisions of the
Definitions are hereby incorporated by reference in and shall be deemed
a part of this Agreement, except that (i) references in the Definitions
to a "Swap Transaction" shall be deemed references to a "Transaction"
for purposes of this Agreement, and (ii) references to a "Transaction"
in this Agreement shall be deemed references to a "Swap Transaction" for
purposes of the Definitions.
(b) AMENDMENTS TO ISDA MASTER AGREEMENT.
(i) SINGLE AGREEMENT. Section 1(c) is hereby amended by the adding
the words "including, for the avoidance of doubt, the Credit
Support Annex" after the words "Master Agreement".
(ii) CONDITIONS PRECEDENT. Section 2(a)(iii) is hereby amended by
adding the following at the end thereof:
Notwithstanding anything to the contrary in Section
2(a)(iii)(1), if an Event of Default with respect to Party B or
Potential Event of Default with respect to Party B has occurred
and been continuing for more than 30 Local Business Days and no
Early Termination Date in respect of the Affected Transactions
has occurred or been effectively designated by Party A, the
obligations of Party A under Section 2(a)(i) shall cease to be
subject to the condition precedent set forth in Section
2(a)(iii)(1) with respect to such specific occurrence of such
Event of Default or such Potential Event of Default (the
"SPECIFIC EVENT"); provided, however, for the avoidance of
doubt, the obligations of Party A under Section 2(a)(i) shall be
subject to the condition precedent set forth in Section
2(a)(iii)(1) (subject to the foregoing) with respect to any
subsequent occurrence of the same Event of Default with respect
to Party B or Potential Event of Default with respect to Party B
after the Specific Event has ceased to be continuing and with
respect to any occurrence of any other Event of Default with
respect to Party B or Potential Event of Default with respect to
Party B that occurs subsequent to the Specific Event.
(iii) CHANGE OF ACCOUNT. Section 2(b) is hereby amended by the
addition of the following after the word "delivery" in the first
line thereof:
9
"to another account in the same legal and tax jurisdiction as
the original account".
(iv) REPRESENTATIONS. Section 3 is hereby amended by adding at the
end thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Nonreliance. (i) It is not relying on any statement
or representation of the other party regarding the
Transaction (whether written or oral), other than
the representations expressly made in this Agreement
or the Confirmation in respect of that Transaction
and (ii) it has consulted with its own legal,
regulatory, tax, business, investment, financial and
accounting advisors to the extent it has deemed
necessary, and it has made its own investment,
hedging and trading decisions based upon its own
judgment and upon any advice from such advisors as
it has deemed necessary and not upon any view
expressed by the other party.
(2) Evaluation and Understanding. (i) It has the
capacity to evaluate (internally or through
independent professional advice) the Transaction and
has made its own decision subject to Section 6(n) of
this Agreement to enter into the Transaction and
(ii) It understands the terms, conditions and risks
of the Transaction and is willing and able to accept
those terms and conditions and to assume those
risks, financially and otherwise.
(3) Purpose. It is entering into the Transaction for the
purposes of managing its borrowings or investments,
hedging its underlying assets or liabilities or in
connection with a line of business.
(4) Status of Parties. The other party is not acting as
an agent, fiduciary or advisor for it in respect of
the Transaction.
(5) Eligible Contract Participant. It is an "eligible
swap participant" as such term is defined in,
Section 35.1(b)(2) of the regulations (17 C.F.R. 35)
promulgated under, and an "eligible contract
participant" as defined in Section 1(a)(12) of the
Commodity Exchange Act, as amended."
(6) With respect to Party A only, it is a "financial
institution" as defined in the Federal Deposit
Insurance Corporation Improvement Act of 1991 or
Regulation EE promulgated by the Federal Reserve
Board thereunder."
(v) TRANSFER TO AVOID TERMINATION EVENT. Section 6(b)(ii) is hereby
amended by (i) deleting the words "or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party," and (ii)
by deleting the words "to transfer" and inserting the words "to
effect a Permitted Transfer" in lieu thereof.
(vi) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting
in the second line of subparagraph (i) thereof the word "non-",
(ii) deleting "; and" from the end of subparagraph 1 and
inserting "." in lieu thereof, and (iii) deleting the final
paragraph thereof.
(vii) LOCAL BUSINESS DAY. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words "or
any Credit Support Document" after "Section 2(a)(i)" and the
addition of the words "or Credit Support Document" after
"Confirmation".
(c) ADDITIONAL TERMINATION EVENTS. The following Additional Termination
Events will apply:
10
(i) FIRST RATING TRIGGER COLLATERAL. If (A) it is not the case that
a Moody's Second Trigger Ratings Event has occurred and been
continuing for 30 or more Local Business Days and (B) Party A
has failed to comply with or perform any obligation to be
complied with or performed by Party A in accordance with the
Credit Support Annex, then an Additional Termination Event shall
have occurred with respect to Party A and Party A shall be the
sole Affected Party with respect to such Additional Termination
Event.
(ii) SECOND RATING TRIGGER REPLACEMENT. If (A) a Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local Business Days and (B) (i) at least one Eligible
Replacement has made a Firm Offer to be the transferee of all of
Party A's rights and obligations under this Agreement (and such
Firm Offer remains an offer that will become legally binding
upon such Eligible Replacement upon acceptance by the offeree)
and/or (ii) an Eligible Guarantor has made a Firm Offer to
provide an Eligible Guarantee (and such Firm Offer remains an
offer that will become legally binding upon such Eligible
Guarantor immediately upon acceptance by the offeree), then an
Additional Termination Event shall have occurred with respect to
Party A and Party A shall be the sole Affected Party with
respect to such Additional Termination Event.
(iii) SUPPLEMENTAL POOLING AND SERVICING AGREEMENT WITHOUT PARTY A'S
PRIOR WRITTEN CONSENT. If Party B enters into an amendment and
or supplement to the Pooling and Servicing Agreement or other
modification to the Pooling and Servicing Agreement that could
reasonably be expected to have a material adverse effect on
Party A (excluding, for the avoidance of doubt, any amendment to
the Pooling and Servicing Agreement that is entered into solely
for the purpose of appointing a successor master servicer or
trustee) without the prior written consent (such consent not to
be unreasonably withheld) of Party A, then an Additional
Termination Event shall have occurred with respect to Party B
and Party B shall be the sole Affected Party with respect to
such Additional Termination Event. Party B agrees with Party A
that Party A shall be an express third-party beneficiary of the
Pooling and Servicing Agreement subject to any limitations on
liability set forth herein.
(iv) [Reserved.]
(d) REQUIRED RATINGS DOWNGRADE EVENT. In the event that no Relevant Entity
has credit ratings at least equal to the Required Ratings Threshold
(such event, a "REQUIRED RATINGS DOWNGRADE EVENT"), then Party A shall,
as soon as reasonably practicable and so long as a Required Ratings
Downgrade Event is in effect, at its own expense, using commercially
reasonable efforts, procure either (A) a Permitted Transfer or (B) an
Eligible Guarantee from an Eligible Guarantor.
(e) REGULATION AB COMPLIANCE. Party A and Party B agree that the terms of
the Item 1115 Agreement dated as of December 12, 2006 (the "REGULATION
AB AGREEMENT"), among Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx
Xxxxx Mortgage Investors, Inc. and Party A shall be incorporated by
reference into this Agreement so that Party B shall be an express third
party beneficiary of the Regulation AB Agreement. A copy of the
Regulation AB Agreement is attached hereto as Exhibit A.
(f) TRANSFERS. Notwithstanding the provisions of Section 7 of the Agreement,
Party A may assign and delegate its rights and obligations under (i) any
one or more Transactions or (ii) this Agreement and all Transactions
hereunder (the "Transferred Obligations") to any subsidiary of ML & Co.
(the "Assignee") by notice specifying the effective date of such
transfer ("Transfer Date") and including an executed acceptance and
assumption by the Assignee of the Transferred Obligations; provided that
(a) the Assignee is a recognized dealer in interest rate swaps organized
under the laws of the United States of America or a jurisdiction located
in the United States of America (or another jurisdiction reasonably
acceptable to Party B), (b) as of the date of such transfer neither
Party B nor the Assignee would be required to withhold or deduct on
account of Tax from any payments under this Agreement, (c) an Event of
Default or Termination Event would not occur as a result of such
transfer, (d) Party B has consented in writing to the transfer, such
consent not to be unreasonably withheld, (e) the transfer would not give
rise to a taxable event or any other adverse Tax consequences to Party B
or its interest holders, as determined by Party B in its sole
discretion, (f) Party A will be responsible for any costs or expenses
incurred in connection with such transfer
11
(including any replacement cost of entering into a replacement
transaction), and (g) the Rating Agency Condition is satisfied with
respect to Xxxxx'x, S&P and Fitch.
On the Transfer Date, (a) Party A shall be released from all obligations
and liabilities arising under the Transferred Obligations unless accrued
prior to the transfer; and (b) if Party A has not assigned and delegated
its rights and obligations under this Agreement and all Transactions
hereunder, the Transferred Obligations shall cease to be Transaction(s)
under this Agreement and shall be deemed to be Transaction(s) under the
master agreement, if any, between Assignee and Party B, provided that,
if at such time Assignee and Party B have not entered into a master
agreement, Assignee and Party B shall be deemed to have entered into an
ISDA form of Master Agreement (Multicurrency-Cross Border) with a
Schedule substantially in the form hereof but amended to reflect the
name of the Assignee and the address for notices and any amended
representations under Part 2 hereof as may be specified in the notice of
transfer.
(g) LIMITED RECOURSE. The obligations of Party B under this Agreement are
limited recourse obligations of Party B, payable solely from (x)
payments out of interest distributions paid in respect of the Class
AJ-FL REMIC II Regular Interest on such Distribution Date and (y) Yield
Maintenance Charges and Prepayment Premiums, subject to and in
accordance with the terms of the Pooling and Servicing Agreement. No
recourse shall be had for the payment of any amount owing in respect of
this Agreement against the trustee or paying agent, or any officer,
member, director, employee, security holder or incorporator thereof
(each, an "Affiliated Person") of Party B or its successors or assigns
for any amounts payable under this Agreement. Upon application of the
Trust Estate in accordance with the Pooling and Servicing Agreement,
Party A shall not be entitled to take any further steps against Party B
to recover any sums due but still unpaid hereunder or thereunder, and
all claims by Party A against Party B hereunder and/or under the Pooling
and Servicing Agreement shall be extinguished. Party B shall not have
liability for any failure or delay in making a payment hereunder to
Party A due to any failure or delay in receiving amounts under the
Pooling and Servicing Agreement. This provision shall survive
termination of this Agreement. Party B shall have no liability hereunder
for any payments under Section 11 to Party A, unless otherwise provided
for in the Pooling and Servicing Agreement.
(h) [Reserved]
(i) RATING AGENCY NOTIFICATIONS. Notwithstanding any other provision of this
Agreement, no Early Termination Date shall be effectively designated
hereunder by Party B and no transfer of any rights or obligations under
this Agreement shall be made by either party unless each Swap Rating
Agency has been given prior written notice of such designation or
transfer.
(j) NO SET-OFF. Except as expressly provided for in Section 2(c) hereof and
Paragraph 8 of the Credit Support Annex, and notwithstanding any other
provision of this Agreement or any other existing or future agreement,
each party irrevocably waives any and all rights it may have to set off,
net, recoup or otherwise withhold or suspend or condition payment or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the following
sentence: "The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be subject
to any Set-off."
(k) RATING AGENCY CONFIRMATION OF AMENDMENTS, ASSIGNMENTS AND TRANSFERS.
Notwithstanding any provision to the contrary in this Agreement, no
amendment, transfer or assignment of either this Agreement or any
Transaction under this Agreement shall be permitted by either party
unless each of the Swap Agencies has been provided prior written notice
of the same and S&P confirms in writing (including by facsimile
transmission) that it will not downgrade, withdraw or otherwise modify
its then-current ratings of the Certificates.
(l) NOTICE OF CERTAIN EVENTS OR CIRCUMSTANCES. Each Party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other Party and to each Swap
Rating Agency notice of such event or condition; provided that
12
failure to provide notice of such event or condition pursuant to this
Part 5(l) shall not constitute an Event of Default or a Termination
Event.
(m) PROCEEDINGS. No Relevant Entity shall institute against, or cause any
other person to institute against, or join any other person in
instituting against Party B or the Trust formed pursuant to the Pooling
and Servicing Agreement, in any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any
federal or state bankruptcy or similar law for a period of one year (or,
if longer, the applicable preference period) and one day following
payment in full of the Certificates. This provision will survive the
termination of this Agreement.
(n) TRUSTEE LIABILITY LIMITATIONS. Party A and Party B agree to the
following: (a) LaSalle Bank National Association ("LaSalle") is entering
into this Agreement not in its individual or corporate capacity, but
solely as Trustee for ML-CFC COMMERCIAL MORTGAGE TRUST 2006-4; (b) in no
case shall LaSalle (or any person acting as successor Trustee for ML-CFC
COMMERCIAL MORTGAGE TRUST 2006-4) be personally liable for or on account
of any of the statements, representations, warranties, covenants or
obligations stated to be those of Party B under the terms of this
Agreement, all such liability, if any, being expressly waived by Party A
and any person claiming by, through or under Party A; and (c) recourse
against Party B shall be limited to the assets available as set forth
herein and under the Pooling and Servicing Agreement. This Part 5(n)
shall survive the termination of this Agreement.
(o) SEVERABILITY. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance,
shall be held to be invalid or unenforceable (in whole or in part) in
any respect, the remaining terms, provisions, covenants, and conditions
hereof shall continue in full force and effect as if this Agreement had
been executed with the invalid or unenforceable portion eliminated, so
long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of
this Agreement will not substantially impair the respective benefits or
expectations of the parties; provided, however, that this severability
provision shall not be applicable if any provision of Section 2, 5, 6,
or 13 (or any definition or provision in Section 14 to the extent it
relates to, or is used in or in connection with any such Section) shall
be so held to be invalid or unenforceable.
The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or
condition with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to
that of the invalid or unenforceable term, provision, covenant or
condition.
(p) [Reserved]
(q) ESCROW PAYMENTS. If (whether by reason of the time difference between
the cities in which payments are to be made or otherwise) it is not
possible for simultaneous payments to be made on any date on which both
parties are required to make payments hereunder, either Party may at its
option and in its sole discretion notify the other Party that payments
on that date are to be made in escrow. In this case deposit of the
payment due earlier on that date shall be made by 2:00 pm (local time at
the place for the earlier payment) on that date with an escrow agent
selected by the notifying party, accompanied by irrevocable payment
instructions (i) to release the deposited payment to the intended
recipient upon receipt by the escrow agent of the required deposit of
any corresponding payment payable by the other party on the same date
accompanied by irrevocable payment instructions to the same effect or
(ii) if the required deposit of the corresponding payment is not made on
that same date, to return the payment deposited to the party that paid
it into escrow. The party that elects to have payments made in escrow
shall pay all costs of the escrow arrangements.
(r) CONSENT TO RECORDING. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between trading, marketing, and operations
personnel of the parties and their Affiliates, waives any further notice
of such monitoring or recording, and agrees to notify such personnel of
such monitoring or recording.
13
(s) WAIVER OF JURY TRIAL. Each party waives any right it may have to a trial
by jury in respect of any in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document.
(t) [Reserved]
(u) [Reserved]
(v) Additional representations.
(i) CAPACITY. Party A represents to Party B on the date on which
Party A enters into this Agreement that it is entering into the
Agreement and the Transaction as principal and not as agent of
any person.
(w) ACKNOWLEDGEMENTS.
(i) SUBSTANTIAL FINANCIAL TRANSACTIONS. Each party hereto is hereby
advised and acknowledges as of the date hereof that the other
party has engaged in (or refrained from engaging in) substantial
financial transactions and has taken (or refrained from taking)
other material actions in reliance upon the entry by the parties
into the Transaction being entered into on the terms and
conditions set forth herein and in the Pooling and Servicing
Agreement relating to such Transaction, as applicable. This
paragraph shall be deemed repeated on the trade date of each
Transaction.
(ii) BANKRUPTCY CODE. Subject to Part 5(m), without limiting the
applicability if any, of any other provision of the U.S.
Bankruptcy Code as amended (the "Bankruptcy Code") (including
without limitation Sections 362, 546, 556, and 560 thereof and
the applicable definitions in Section 101 thereof), the parties
acknowledge and agree that all Transactions entered into
hereunder will constitute "forward contracts" or "swap
agreements" as defined in Section 101 of the Bankruptcy Code or
"commodity contracts" as defined in Section 761 of the
Bankruptcy Code, that the rights of the parties under Section 6
of this Agreement will constitute contractual rights to
liquidate Transactions, that any margin or collateral provided
under any margin, collateral, security, pledge, or similar
agreement related hereto will constitute a "margin payment" as
defined in Section 101 of the Bankruptcy Code, and that the
parties are entities entitled to the rights under, and
protections afforded by, Sections 362, 546, 556, and 560 of the
Bankruptcy Code.
(x) [Reserved]
(y) [Reserved]
(z) ADDITIONAL DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
set forth below, unless the context clearly requires otherwise:
"APPROVED RATINGS THRESHOLD" means each of the S&P Approved Ratings
Threshold and the Moody's First Trigger Ratings Threshold.
"APPROVED REPLACEMENT" means, with respect to a Market Quotation, an
entity making such Market Quotation, which entity would satisfy
conditions (a), (b), (c) and (e) of the definition of Permitted Transfer
(as determined by Party B in its sole discretion, acting in a
commercially reasonable manner) if such entity were a Transferee, as
defined in the definition of Permitted Transfer.
"CLASS AJ-FL CERTIFICATES" means the Commercial Mortgage Pass-Through
Certificates, Series 2006-4, Class AJ-FL, issued by Party B.
14
"DERIVATIVE PROVIDER TRIGGER EVENT" means (i) an Event of Default with
respect to which Party A is a Defaulting Party, (ii) a Termination Event
with respect to which Party A is the sole Affected Party or (iii) an
Additional Termination Event with respect to which Party A is the sole
Affected Party.
"ELIGIBLE GUARANTEE" means an unconditional and irrevocable guarantee of
all present and future obligations (for the avoidance of doubt, not
limited to payment obligations) of Party A or an Eligible Replacement to
Party A under this Agreement that is provided by an Eligible Guarantor
as principal debtor rather than surety and that is directly enforceable
by Party B, the form and substance of which guarantee are subject to the
Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor's
payments to Party B under such guarantee will be subject to Tax
collected by withholding or (B) such guarantee provides that, in the
event that any of such guarantor's payments to Party B are subject to
Tax collected by withholding, such guarantor is required to pay such
additional amount as is necessary to ensure that the net amount actually
received by Party B (free and clear of any Tax collected by withholding)
will equal the full amount Party B would have received had no such
withholding been required.
"ELIGIBLE GUARANTOR" means an entity that (A) has credit ratings at
least equal to the Approved Ratings Threshold or (B) has credit ratings
at least equal to the Required Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor
with credit ratings below the Approved Ratings Threshold will not cause
a Collateral Event (as defined in the Credit Support Annex) not to occur
or continue.
"ELIGIBLE REPLACEMENT" means an entity (A) (i) that has credit ratings
at least equal to the Approved Ratings Threshold, (ii) has credit
ratings at least equal to the Required Ratings Threshold, provided, for
the avoidance of doubt, that an Eligible Guarantee of an Eligible
Guarantor with credit ratings below the Approved Ratings Threshold will
not cause a Collateral Event (as defined in the Credit Support Annex)
not to occur or continue, or (iii) the present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of
which entity to Party B under this Agreement are guaranteed pursuant to
an Eligible Guarantee provided by an Eligible Guarantor and (B) that has
executed an Item 1115 Agreement with the Depositor.
"FIRM OFFER" means (A) with respect to an Eligible Replacement, a
quotation from such Eligible Replacement (i) in an amount equal to the
actual amount payable by or to Party B in consideration of an agreement
between Party B and such Eligible Replacement to replace Party A as the
counterparty to this Agreement by way of novation or, if such novation
is not possible, an agreement between Party B and such Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as
the counterparty to this Agreement or enter a Replacement Transaction
that will become legally binding upon such Eligible Replacement upon
acceptance by Party B, and (B) with respect to an Eligible Guarantor, an
offer by such Eligible Guarantor to provide an Eligible Guarantee that
will become legally binding upon such Eligible Guarantor upon acceptance
by the offeree.
"MOODY'S" means Xxxxx'x Investors Service, Inc., or any successor
thereto.
"MOODY'S FIRST TRIGGER RATINGS THRESHOLD" means, with respect to Party
A, the guarantor under an Eligible Guarantee or an Eligible Replacement,
(i) if such entity has a short-term unsecured and unsubordinated debt
rating from Moody's, a long-term unsecured and unsubordinated debt
rating or counterparty rating from Moody's of "A2" and a short-term
unsecured and unsubordinated debt rating from Moody's of "Prime-1", or
(ii) if such entity does not have a short-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A1".
"MOODY'S SECOND TRIGGER RATINGS EVENT" means that no Relevant Entity has
credit ratings from Moody's at least equal to the Moody's Second Trigger
Rating Threshold.
15
"MOODY'S SECOND TRIGGER RATINGS THRESHOLD" means, with respect to Party
A, the guarantor under an Eligible Guarantee or an Eligible Replacement,
(i) if such entity has a short-term unsecured and unsubordinated debt
rating from Moody's, a long-term unsecured and unsubordinated debt
rating or counterparty rating from Moody's of "A3" and a short-term
unsecured and unsubordinated debt rating from Moody's of "Prime-2", or
(ii) if such entity does not have a short-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A3".
"PERMITTED TRANSFER" means a transfer by novation by Party A to a
transferee (the "Transferee") of all, but not less than all, of Party
A's rights, liabilities, duties and obligations under this Agreement,
with respect to which transfer each of the following conditions is
satisfied: (a) the Transferee is an Eligible Replacement that is a
recognized dealer in interest rate swaps organized under the laws of the
United States of America or a jurisdiction located in the United States
of America (or another jurisdiction reasonably acceptable to Party B),
(b) an Event of Default or Termination Event would not occur as a result
of such transfer, (c) pursuant to a written instrument (the "Transfer
Agreement"), the Transferee acquires and assumes all rights and
obligations of Party A under the Agreement and the relevant Transaction,
(d) Party B shall have determined, in its sole discretion, acting in a
commercially reasonable manner, that such Transfer Agreement is
effective to transfer to the Transferee all, but not less than all, of
Party A's rights and obligations under the Agreement and all relevant
Transactions; (e) Party A will be responsible for any costs or expenses
incurred in connection with such transfer (including any replacement
cost of entering into a replacement transaction); (f) Moody's has been
given prior written notice of such transfer and the Rating Agency
Condition is satisfied with respect to S&P and (g) such transfer
otherwise complies with the terms of the Pooling and Servicing
Agreement.
"POOLING AND SERVICING AGREEMENT" means the Pooling and Servicing
Agreement dated and effective as of December 1, 2006, among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, Midland Loan Services,
Inc., as Master Servicer, Xxxxx Fargo Bank National Association, as
Master Servicer, LNR Partners, Inc., as Special Servicer, and LaSalle
Bank National Association, as Trustee, as the same may be amended,
supplemented or otherwise modified from time to time (except as
otherwise provided in Part 5(c)(iii)).
"RATING AGENCY CONDITION" means, with respect to any particular proposed
act or omission to act hereunder and each Swap Rating Agency specified
in connection with such proposed act or omission, that the party acting
or failing to act must consult with each of the specified Swap Rating
Agencies and receive from each such Swap Rating Agency a prior written
confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of the then-current rating of any Certificates.
"RELEVANT ENTITY" means Party A and, to the extent applicable, a
guarantor under an Eligible Guarantee.
"REPLACEMENT TRANSACTION" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or group
of transactions that (i) would have the effect of preserving for Party B
the economic equivalent of any payment or delivery (whether the
underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties
under Section 2(a)(i) in respect of such Terminated Transaction or group
of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that Date, and
(ii) has terms which are substantially the same as this Agreement,
including, without limitation, rating triggers, Regulation AB
compliance, and credit support documentation, save for the exclusion of
provisions relating to Transactions that are not Terminated
Transactions, as determined by Party B in its sole discretion, acting in
a commercially reasonable manner.
"REQUIRED RATINGS DOWNGRADE EVENT" shall have the meaning assigned
thereto in Part 5(d).
"REQUIRED RATINGS THRESHOLD" means each of the S&P Required Ratings
Threshold and the Moody's Second Trigger Ratings Threshold.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
16
"S&P APPROVED RATINGS THRESHOLD" means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a
short-term unsecured and unsubordinated debt rating from S&P of "A-1",
or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of "A+".
"S&P REQUIRED RATINGS THRESHOLD" means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a
long-term unsecured and unsubordinated debt rating from S&P of "BBB+".
"SWAP RATING AGENCIES" means, with respect to any date of determination,
each of S&P and Moody's, to the extent that each such rating agency is
then providing a rating for any of the Certificates.
17
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
XXXXXXX XXXXX XX-CFC COMMERCIAL MORTGAGE
CAPITAL SERVICES, INC. TRUST 2006-4
("Party A") ("Party B")
By: LaSalle Bank National Association,
not in its individual capacity, but
solely as Trustee
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------ ------------------------
Name: Xxxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory Title: Assistant Vice President
Date: Date:
18
EXHIBIT A
Regulation AB Agreement
19
