EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
XXXXX FARGO BANK, N.A.,
Master Servicer
LNR PARTNERS, INC.,
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
November 28, 2006
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-CIBC17
Commercial Mortgage Pass-Through Certificates
Series 2006-CIBC17
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; 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..........................................
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution
Account, the Interest Reserve Account and the
Gain-on-Sale Reserve Account................................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts and the Companion Distribution
Account.....................................................
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account.................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
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 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer....................................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.25 Interest Reserve Account.....................................
Section 3.26 [Reserved]...................................................
Section 3.27 Directing Certificateholder Contact with Master Servicer
and Special Servicer........................................
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
Section 3.29 Intercreditor Agreements.....................................
Section 3.30 Companion Paying Agent.......................................
Section 3.31 Companion Register...........................................
Section 3.32 Litigation Control...........................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s; Grant of Power of Attorney..................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
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 Certificate Ownership Certification..........................
Section 5.07 Appointment of Paying Agent..................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
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 Depositor, the Master
Servicer, the Special Servicer and Others...................
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign......................................................
Section 6.05 Rights of the Depositor in Respect of the Master Servicer
and the Special Servicer....................................
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner...........................................
Section 6.07 The Directing Certificateholder..............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination.................................................
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 as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent...................
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.......................................................
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............
Section 8.04 Trustee or Paying Agent May Own Certificates.................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent.................
Section 8.06 Eligibility Requirements for Trustee and Paying Agent........
Section 8.07 Resignation and Removal of the Trustee and Paying Agent......
Section 8.08 Successor Trustee or Paying Agent............................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent...........
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
Section 8.14 Representations and Warranties of the Paying Agent...........
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Use of Agents................................................
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent.................................
Section 10.04 Appointment of REMIC Administrators..........................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Attestation Report....
Section 11.12 Indemnification..............................................
Section 11.13 Amendments...................................................
Section 11.14 Regulation AB Notices........................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law................................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Grant of a Security Interest.................................
Section 12.08 Successors and Assigns; Third Party Beneficiaries............
Section 12.09 Article and Section Headings.................................
Section 12.10 Notices to the Rating Agencies...............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-3 Certificate
Exhibit A-3 Form of Class A-4 Certificate
Exhibit A-4 Form of Class A-SB Certificate
Exhibit A-5 Form of Class A-1A Certificate
Exhibit A-6 Form of Class X Certificate
Exhibit A-7 Form of Class A-M Certificate
Exhibit A-8 Form of Class A-J Certificate
Exhibit A-9 Form of Class B Certificate
Exhibit A-10 Form of Class C Certificate
Exhibit A-11 Form of Class D Certificate
Exhibit A-12 Form of Class E Certificate
Exhibit A-13 Form of Class F Certificate
Exhibit A-14 Form of Class G Certificate
Exhibit A-15 Form of Class H Certificate
Exhibit A-16 Form of Class J Certificate
Exhibit A-17 Form of Class K Certificate
Exhibit A-18 Form of Class L Certificate
Exhibit A-19 Form of Class M Certificate
Exhibit A-20 Form of Class N Certificate
Exhibit A-21 Form of Class P Certificate
Exhibit A-22 Form of Class NR Certificate
Exhibit A-23 Form of Class R Certificate
Exhibit A-24 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [Reserved]
Exhibit M Controlling Class Certificateholder's Reports Checklist
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate
during Restricted Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Initial Companion Holders
Exhibit R Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
Exhibit S Information Request from Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit T Trustee Certification/Exception Report
Exhibit U [Reserved]
Exhibit V Form Certification to be Provided with Form 10-K
Exhibit W-1 Form of Certification to be Provided to Depositor by Paying
Agent
Exhibit W-2 Form of Certification to be Provided to Depositor by Master
Servicer
Exhibit W-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit X Servicing Criteria to be Addressed in Assessment of
Compliance
Exhibit Y Additional Form 10-D Disclosure
Exhibit Z Additional Form 10-K Disclosure
Exhibit AA Form 8-K Disclosure Information
Exhibit BB Additional Disclosure Notification
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Class A-SB Planned Principal Balance Schedule
Schedule 4 Earnouts and Holdbacks
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of November 28, 2006, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Xxxxx Fargo Bank, N.A., as Master Servicer, LNR
Partners, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee and as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause an
election to be made to treat the Trust Fund for federal income tax purposes as
two separate real estate mortgage investment conduits (the "Upper-Tier REMIC"
and the "Lower-Tier REMIC" as described herein).
LOWER-TIER REMIC
The Class XX-0, Xxxxx XX-0X, Xxxxx XX-0, Class LA-4, Class LA-SB,
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 LP and
Class LNR Uncertificated Interests will evidence "regular interests" in the
Lower-Tier REMIC created hereunder. The sole Class of "residual interests" in
the Lower-Tier REMIC will be evidenced by the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Original Lower-Tier
Class Designation Interest Rate Principal Amount
-------------------- ----------------- ----------------------
Class LA-1 (1) $ 70,459,000
Class LA-3 (1) $ 105,767,000
Class LA-4 (1) $ 1,222,397,000
Class LA-SB (1) $ 89,092,000
Class LA-1A (1) $ 288,112,000
Class LA-M (1) $ 253,689,000
Class LA-J (1) $ 202,952,000
Class LB (1) $ 44,396,000
Class LC (1) $ 19,027,000
Class LD (1) $ 34,882,000
Class LE (1) $ 31,711,000
Class LF (1) $ 34,882,000
Class LG (1) $ 31,712,000
Class LH (1) $ 31,711,000
Class LJ (1) $ 9,513,000
Class LK (1) $ 9,514,000
Class LL (1) $ 9,513,000
Class LM (1) $ 3,171,000
Class LN (1) $ 6,342,000
Class LP (1) $ 6,343,000
Class LNR (1) $ 31,711,225
Class LR None(2) None (2)
---------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates will not have a Certificate Balance or Notional
Amount, will not bear interest and will not be entitled to distributions
of Yield Maintenance Charges. Any Available Distribution Amount remaining
in the Lower-Tier Distribution Account after distributing the Lower-Tier
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class
A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class NR and Class X
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 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 Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
for each Class of Certificates comprising the interests in the Upper-Tier REMIC
created hereunder:
Original
Initial Certificate
Pass-Through Balance or Ratings(1)
Rate Notional Amount (Xxxxx'x/Fitch)
-------------------------- ------------ --------------- ---------------
Class A-1 Certificates(2) 5.2790% $ 70,459,000 Aaa/AAA
Class A-3 Certificates(2) 5.4500% $ 105,767,000 Aaa/AAA
Class A-4 Certificates(2) 5.4290% $1,222,397,000 Aaa/AAA
Class A-SB Certificates(2) 5.4150% $ 89,092,000 Aaa/AAA
Class A-1A Certificates(2) 5.4260% $ 288,112,000 Aaa/AAA
Class A-M Certificates 5.4640% $ 253,689,000 Aaa/AAA
Class A-J Certificates 5.4890%(3) $ 202,952,000 Aaa/AAA
Class B Certificates 5.5430%(3) $ 44,396,000 Aa2/AA
Class C Certificates 5.5830%(3) $ 19,027,000 Aa3/AA-
Class D Certificates 5.6220%(3) $ 34,882,000 A2/A
Class E Certificates 5.6202%(4) $ 31,711,000 A3/A-
Class F Certificates 5.7872%(4) $ 34,882,000 Baa1/BBB+
Class G Certificates 5.8862%(4) $ 31,712,000 Baa2/BBB
Class H Certificates 5.9652%(5) $ 31,711,000 Baa3/BBB-
Class J Certificates 5.1470% $ 9,513,000 Ba1/BB+
Class K Certificates 5.1470% $ 9,514,000 Ba2/BB
Class L Certificates 5.1470% $ 9,513,000 Ba3/BB-
Class M Certificates 5.1470% $ 3,171,000 B1/B+
Class N Certificates 5.1470% $ 6,342,000 B2/B
Class P Certificates 5.1470% $ 6,343,000 B3/B-
Class NR Certificates 5.1470% $ 31,711,225 */*
Class R Certificates N/A(6) N/A(6) */*
Class X Certificates 0.5149%(7) $2,536,896,225(8) Aaa/AAA
---------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-3, Class
A-4, Class A-SB and Class A-1A Certificates, the pool of Mortgage Loans
will be deemed to consist of two distinct Loan Groups, Loan Group 1 and
Loan Group 2.
(3) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(4) The Pass-Through Rate for any Distribution Date for the Class E, Class F
and Class G Certificates will be a per annum rate equal to the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.3450%, 0.1780%
and 0.0790%, respectively.
(5) The Pass-Through Rate for any Distribution Date for the Class H
Certificates will be the Weighted Average Net Mortgage Rate.
(6) The Class R Certificates will not have a Certificate Balance or Notional
Amount, will not bear interest and will not be entitled to distributions
of Yield Maintenance Charges. Any Available Distribution Amount 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.
(7) The Pass-Through Rate for the Class X Certificates will be calculated in
accordance with the definition of "Class X Pass-Through Rate".
(8) The Class X Certificates will not have a Certificate Balance; rather, such
Class of Certificates will accrue interest as provided herein on the Class
X Notional Amount.
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$2,536,896,226.
The Bank of America Plaza Companion Note, Com Realty Portfolio
Companion Loan, Saint Rita's Companion Loan, The Patio Shops Companion Loan,
Towne Center at Xxxxxxxx Trail Companion Loan, Xxxxxx Oceanics Building
Companion Loan and River Xxxx Apartments Companion Loan (collectively, the
"Companion Loans") are not part of the Trust Fund, but are secured by the same
Mortgage that secures the related Mortgage Loan (each, with the exception of the
Bank of America Plaza Mortgage Loan, an "AB Mortgage Loan" and, collectively,
the "AB Mortgage Loans") that is part of the Trust Fund. As and to the extent
provided herein, the Companion Loans will be serviced and administered in
accordance with this Agreement. Amounts attributable to the Companion Loans will
not be assets of the Trust Fund, and (except to the extent that such amounts are
payable or reimbursable to any party to this Agreement) will be owned by the
related Companion Holders.
The Bank of America Plaza Whole Loan consists of the Bank of America
Plaza Mortgage Loan and the Bank of America Plaza Companion Note. The Bank of
America Plaza Mortgage Loan and the Bank of America Plaza Companion Note are
pari passu with each other. The Bank of America Plaza Mortgage Loan is part of
the Trust Fund. The Bank of America Plaza Companion Note is not part of the
Trust Fund. The Bank of America Plaza Mortgage Loan will be serviced and
administered in accordance with this Agreement.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"10-K Filing Deadline": As defined in Section 11.05.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Loan Pair, a default under the related Mortgage Loan documents arising by reason
of (i) any failure on the part of the related Mortgagor to maintain with respect
to the related Mortgaged Property specific insurance coverage with respect to,
or an all-risk casualty insurance policy that does not specifically exclude,
terrorist or similar acts, and/or (ii) any failure on the part of the related
Mortgagor to maintain with respect to the related Mortgaged Property insurance
coverage with respect to damages or casualties caused by terrorist or similar
acts upon terms not materially less favorable than those in place as of the
Closing Date, in each case as to which default the Master Servicer and the
Special Servicer may forbear taking any enforcement action, provided that the
Special Servicer has determined, in its reasonable judgment, based on inquiry
consistent with the Servicing Standards and with the consent of the Directing
Certificateholder, that either (a) such insurance is not available at
commercially reasonable rates and that such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located, or (b) such insurance is not available at any rate; provided, however,
the Directing Certificateholder will not have more than 30 days to respond to
the Special Servicer's request for consent thereto, or to object after notice
thereof; provided, further, that upon the Special Servicer's determination,
consistent with the Servicing Standards, that exigent circumstances do not allow
the Special Servicer to obtain the consent of the Directing Certificateholder,
the Special Servicer will not be required to do so. The Special Servicer shall
be entitled to rely on insurance consultants in making the determinations
described above. The costs of such insurance consultants shall be paid from the
applicable Certificate Account as a Servicing Advance to the extent the Mortgage
Loan documents do not prohibit such amounts from being collected from the
related Mortgagor and otherwise as an expense of the Trust Fund. In no event
shall a Workout Fee be payable in connection with the resolution of an
Acceptable Insurance Default.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates, an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate of such Class of
Certificates, for such Distribution Date, accrued on the related Certificate
Balance (or with respect to the Class X Certificates, the Notional Amount of
such Class) outstanding immediately prior to such Distribution Date (provided
that for interest accrual purposes any distributions in reduction of Certificate
Balance or Notional Amount or reductions in Certificate Balance or Notional
Amount as a result of allocations of Collateral Support Deficit on the
Distribution Date occurring in an Interest Accrual Period shall be deemed to
have been made on the first day of such Interest Accrual Period). Accrued
Certificate Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to each
Distribution Date and any Class of Certificates (other than the Class X and the
Residual Certificates) that had an increase to its Certificate Balance as a
result of a recovery of Nonrecoverable Advances, an amount equal to interest at
the Pass-Through Rate applicable to that Class on the amount of such increase to
its Certificate Balance accrued from the Distribution Date on which Collateral
Support Deficit was allocated to such Class as a result of the reimbursement of
Nonrecoverable Advances from the Trust to, but not including, the Distribution
Date on which the Certificate Balance was so increased.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate or
pari passu loan documents (including any Intercreditor Agreement or
subordination agreement).
"Additional Disclosure Notification": 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 BB.
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Servicer": Each Affiliate of the Master Servicer, the
Special Servicer or either Mortgage Loan Seller that services any of the
Mortgage Loans and each Person who is not an Affiliate of the Master Servicer,
other than the Special Servicer, who services 10% or more of the Mortgage Loans.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York and the State of Illinois; and (b) such other state or local tax laws whose
applicability shall have been brought to the attention of the Trustee and the
Paying Agent by either (i) an Opinion of Counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan or Companion Loan and the Bank of America Plaza Whole Loan as to
which an Appraisal Reduction Event has occurred, will be an amount, calculated
by the Special Servicer (which calculation may be relied upon by the Master
Servicer as of 1 day prior to the related Determination Date), as of the first
Determination Date that is at least 10 Business Days following the date on which
the Special Servicer receives an Appraisal or conducts a valuation described
below, equal to the excess of (a) the Stated Principal Balance of such Mortgage
Loan and any related Companion Loan or the Stated Principal Balance of the Bank
of America Plaza Whole Loan, as the case may be, over (b) the excess of (i) the
sum of (A) 90% of the Appraised Value of the related Mortgaged Property as
determined (1) by one or more Appraisals with respect to any Mortgage Loan
(together with any other Mortgage Loan cross-collateralized with such Mortgage
Loan) (or the Bank of America Plaza Whole Loan) with an outstanding principal
balance equal to or in excess of $2,000,000 (the costs of which shall be paid by
the Master Servicer as an Advance) or (2) by an internal valuation performed by
the Special Servicer with respect to any Mortgage Loan (together with any other
Mortgage Loan cross-collateralized with such Mortgage Loan) (or the Bank of
America Plaza Whole Loan) with an outstanding principal balance less than
$2,000,000, minus, with respect to any Appraisals, such downward adjustments as
the Special Servicer may make (without implying any obligation to do so) based
upon its review of the Appraisal and any other information it deems relevant and
(B) all escrows, letters of credit and reserves in respect of such Mortgage Loan
(or the Bank of America Plaza Whole Loan) as of the date of calculation over
(ii) the sum of, as of the Due Date occurring in the month of the date of
determination, (A) to the extent not previously advanced by the Master Servicer
or the Trustee, all unpaid interest due on such Mortgage Loan (or the Bank of
America Plaza Whole Loan) at a per annum rate equal to its Mortgage Rate (and
any accrued and unpaid interest on any related Companion Loan), (B) all
unreimbursed Advances and any Advances that were not reimbursed out of
collections on such Mortgage Loan or the related Companion Loan (or the Bank of
America Plaza Whole Loan) and interest thereon at the Reimbursement Rate in
respect of such Mortgage Loan or Companion Loan (or the Bank of America Plaza
Whole Loan) and (C) all currently due and unpaid real estate taxes, assessments,
insurance premiums, ground rents, unpaid Special Servicing Fees and all other
amounts due and unpaid with respect to such Mortgage Loan or Companion Loan
(which taxes, premiums, ground rents and other amounts have not been the subject
of an Advance by the Master Servicer or the Trustee, as applicable); provided,
however, without limiting the Special Servicer's obligation to order and obtain
such Appraisal or perform such valuation, if the Special Servicer has not
obtained the Appraisal or performed such valuation, as applicable, referred to
above within 60 days of the Appraisal Reduction Event (or with respect to the
Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition
of Appraisal Reduction Event, within 120 days or 90 days, respectively, after
the initial delinquency for the related Appraisal Reduction Event), the amount
of the Appraisal Reduction shall be deemed to be an amount equal to 25% of the
current Stated Principal Balance of the related Mortgage Loan (or the Bank of
America Plaza Whole Loan) (or AB Mortgage Loan and its related Companion Loan in
the case of an AB Mortgage Loan) until such time as such appraisal or valuation
referred to above is received and the Appraisal Reduction is calculated. Within
60 days after the Appraisal Reduction Event, the Special Servicer shall order
and receive an Appraisal (the cost of which shall be paid by the Master Servicer
as a Servicing Advance); provided, however, that with respect to an Appraisal
Reduction Event as set forth in clause (i) of the definition of Appraisal
Reduction Event, the Special Servicer shall order and receive such Appraisal
within the 120-day period set forth in such clause (i), which Appraisal shall be
delivered by the Special Servicer to the Master Servicer, the Directing
Certificateholder, the Paying Agent and the Trustee.
With respect to each Mortgage Loan and with respect to the Bank of
America Plaza Whole Loan as to which an Appraisal Reduction has occurred (unless
such Mortgage Loan or the Bank of America Plaza Whole Loan has become a
Corrected Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or the Bank of America Plaza Whole Loan)),
the Special Servicer shall, within thirty (30) days of each anniversary of the
related Appraisal Reduction Event, order an Appraisal (which may be an update of
a prior Appraisal), the cost of which shall be paid by the Master Servicer as a
Servicing Advance and to the extent it would be a Nonrecoverable Advance, a
Trust expense, or conduct an internal valuation, as applicable and, promptly
following receipt of any such Appraisal or performance of such valuation, shall
deliver a copy thereof to the Master Servicer, the Directing Certificateholder,
the Paying Agent and the Trustee. Based upon such Appraisal or internal
valuation of the Special Servicer, the Special Servicer shall redetermine (in
consultation with the Directing Certificateholder) and report to the Directing
Certificateholder, the Master Servicer, the Paying Agent and the Trustee the
amount and calculation of the Appraisal Reduction with respect to such Mortgage
Loan and Companion Loan or the Bank of America Plaza Whole Loan, as applicable,
and such redetermined Appraisal Reduction shall replace the prior Appraisal
Reduction with respect to such Mortgage Loan and Companion Loan or the Bank of
America Plaza Whole Loan, as applicable. The Directing Certificateholder shall
have ten (10) Business Days to review each calculation of an Appraisal
Reduction. Notwithstanding the foregoing, the Special Servicer will not be
required to obtain an Appraisal or conduct an internal valuation, as applicable,
with respect to a Mortgage Loan or the Bank of America Plaza Whole Loan as to
which an Appraisal Reduction Event has occurred to the extent the Special
Servicer has obtained an Appraisal or conducted such a valuation (in accordance
with requirements of this Agreement), as applicable, with respect to the related
Mortgaged Property within the twelve-month period immediately prior to the
occurrence of such Appraisal Reduction Event. Instead, the Special Servicer may
use such prior Appraisal or valuation, as applicable, in calculating any
Appraisal Reduction with respect to such Mortgage Loan or the Bank of America
Plaza Whole Loan; provided that the Special Servicer is not aware of any
material change to the related Mortgaged Property having occurred and affecting
the validity of such Appraisal or valuation, as applicable.
Any Mortgage Loan or the Bank of America Plaza Whole Loan, as
applicable, previously subject to an Appraisal Reduction which Mortgage Loan or
the Bank of America Plaza Whole Loan, as applicable, has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or the Bank of America Plaza Whole Loan, as
applicable), and with respect to which no other Appraisal Reduction Event has
occurred and is continuing, will no longer be subject to an Appraisal Reduction.
Any Appraisal Reduction for the Bank of America Plaza Whole Loan shall be
allocated in accordance with the Bank of America Plaza Intercreditor Agreement
to the Bank of America Plaza Mortgage Loan and the Bank of America Plaza
Companion Notes according to their respective Stated Principal Balances.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date on which such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan or
Companion Loan, the earliest of (i) 120 days after an uncured delinquency
(without regard to the application of any grace period) occurs in respect of
such Mortgage Loan or Companion Loan, as applicable, (ii) the date on which a
reduction in the amount of Monthly Payments on such Mortgage Loan or Companion
Loan, as applicable, or a change in any other material economic term of such
Mortgage Loan or Companion Loan, as applicable (other than an extension of the
Maturity Date), becomes effective as a result of a modification of such Mortgage
Loan or Companion Loan, as applicable, by the Special Servicer, (iii) the date
on which a receiver has been appointed, (iv) 60 days after a Mortgagor declares
bankruptcy, (v) 60 days after the date on which an involuntary petition of
bankruptcy is filed with respect to a Mortgagor if not dismissed within such
time, (vi) 120 days (or 90 days with respect to a Specially Serviced Mortgage
Loan) after an uncured delinquency occurs in respect of a Balloon Payment with
respect to such Mortgage Loan or Companion Loan, as applicable, and (vii)
immediately after such Mortgage Loan or Companion Loan, as applicable, becomes
an REO Loan; provided, however, that an Appraisal Reduction Event shall not
occur at any time when the aggregate Certificate Balances of all Classes of
Certificates (other than the Class A Certificates) have been reduced to zero.
The Special Servicer shall notify the Master Servicer, or the Master Servicer
shall notify the Special Servicer, as applicable, promptly upon such Person
having notice or knowledge of the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan or the Bank of America Plaza Whole Loan, as
applicable.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Xxxxxx Oceanics Building AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Xxxxxx Oceanics Building AB
Mortgage Loan.
"Xxxxxx Oceanics Building AB Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as Mortgage Loan No. 104.
"Xxxxxx Oceanics Building Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of September 4, 2006, by
and between CIBC Inc., as the A Note Holder, and CBA Mezzanine Capital Finance,
LLC, as the B Note Holder. The Xxxxxx Oceanics Building Intercreditor Agreement
relates to the Xxxxxx Oceanics Building AB Mortgage Loan.
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans on deposit
in the Certificate Account (exclusive of any Net Investment Earnings
contained therein and exclusive of any amount on deposit in or credited to
any portion of the Certificate Account that is held for the benefit of the
Companion Holders) and the Lower-Tier Distribution Account as of the close
of business on the related P&I Advance Date, exclusive of (without
duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period, excluding
interest related to payments prior to, but due after, the Cut-off
Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) through
(vii), inclusive, of Section 3.05(b);
(v) [Reserved];
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account, the
Lower-Tier Distribution Account and, without duplication, the REO
Account in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year (in each case, unless the related
Distribution Date is the final Distribution Date), an amount equal
to one day of interest on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage Rate to
the extent such amounts are Withheld Amounts;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to the Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March (or February,
if the related Distribution Date is the final Distribution Date), the
Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant
to Section 3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bank of America Plaza A2 Note": With respect to the Bank of America
Plaza Whole Loan, the related promissory note made by the related Mortgagor and
secured by the Mortgage on the Bank of America Plaza Mortgaged Property and
designated as promissory note A2, which is not included in the Trust and which
is pari passu in right of payment to the Bank of America Plaza Mortgage Loan, to
the extent set forth in the related Mortgage Loan documents and as provided in
the Bank of America Plaza Intercreditor Agreement.
"Bank of America Plaza Companion Default": As defined in Section
7.01(a).
"Bank of America Plaza Companion Loan Securities": Any class of
securities backed, wholly or partially, by the Bank of America Plaza Companion
Note.
"Bank of America Plaza Companion Note": The Bank of America Plaza A2
Note.
"Bank of America Plaza Companion Noteholder": The holders of the
Bank of America Plaza Companion Note.
"Bank of America Plaza Event of Default": An "Event of Default" as
defined under the Bank of America Plaza Whole Loan documents.
"Bank of America Plaza Intercreditor Agreement": The Intercreditor
Agreement, by and among the holders of the Bank of America Plaza Notes, relating
to the relative rights of such holders of the Bank of America Plaza Whole Loan,
as the same may be further amended in accordance with the terms thereof.
"Bank of America Plaza Mortgage Loan": With respect to the Bank of
America Plaza Whole Loan, the Mortgage Loan that is included in the Trust
(identified as Mortgage Loan No. 1 on the Mortgage Loan Schedule), which is
designated as promissory note A1 and is pari passu in right of payment with the
Bank of America Plaza A2 Note to the extent set forth in the Bank of America
Plaza Whole Loan and as provided in the Bank of America Plaza Intercreditor
Agreement.
"Bank of America Plaza Mortgaged Property": The Mortgaged Property
that secures the Bank of America Plaza Whole Loan.
"Bank of America Plaza Notes": The Bank of America Plaza Mortgage
Loan and the Bank of America Plaza A2 Note.
"Bank of America Plaza Remittance Date": The date that is within two
(2) Business Days following receipt by the Master Servicer from the Bank of
America Plaza Whole Loan borrower of all payments received with respect to and
allocable to the Bank of America Plaza Whole Loan.
"Bank of America Plaza Whole Loan": The Bank of America Plaza
Mortgage Loan, together with the Bank of America Plaza Companion Note, each of
which is secured by the same Mortgage on the Bank of America Plaza Mortgaged
Property. References herein to the Bank of America Plaza Whole Loan shall be
construed to refer to the aggregate indebtedness under the Bank of America Plaza
Notes.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A-1, Class X-0, Xxxxx X-0,
Class A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G and Class H Certificate, a fraction (a) whose numerator is
the greater of (x) zero and (y) the amount by which (i) the Pass-Through Rate on
such Class of Certificates exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment and (b) whose denominator is
the amount by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the
discount rate used in accordance with the related Mortgage Loan documents in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment. However, under no circumstances shall the Base Interest Fraction be
greater than one. If such discount rate is greater than the Mortgage Rate on
such Mortgage Loan, then the Base Interest Fraction will equal zero. The Master
Servicer shall provide to the Paying Agent the discount rate references above
for purposes of calculating the Base Interest Fraction.
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer therefor and the proceeds of any bid pursuant to Section 7.01(c),
the amount of such proceeds (net of any expenses incurred in connection with
such bid and the transfer of servicing), multiplied by a fraction equal to (a)
the Servicing Fee Amount for the Master Servicer or such Sub-Servicer therefor,
as the case may be, as of such date of determination, over (b) the aggregate of
the Servicing Fee Amounts for the Master Servicer and all Sub-Servicers therefor
as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Chicago, Illinois, Miami
Beach, Florida, San Francisco, California or the city and state in which the
Corporate Trust Office of the Trustee, or the principal place of business or
principal commercial mortgage loan servicing office of the Master Servicer, the
Paying Agent or the Special Servicer is located, are authorized or obligated by
law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Xxxxx Fargo Bank, N.A., as Master Servicer, on behalf of LaSalle Bank
National Association, as Trustee, in trust for the registered holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Trust 2006-CIBC17, Commercial
Mortgage Pass-Through Certificates, Series 2006-CIBC17, Certificate Account."
Any such account or accounts shall be an Eligible Account. Subject to the
related Intercreditor Agreement and taking into account that each Companion Loan
is subordinate or pari passu, as applicable, to the related AB Mortgage Loan or
Bank of America Plaza Mortgage Loan to the extent set forth in the related
Intercreditor Agreement, the subaccount described in the second paragraph of
Section 3.04(b) that is part of the Certificate Account shall be for the benefit
of the related Companion Holder, to the extent funds on deposit in such
subaccount are attributed to such Companion Loan and shall not be an asset of
the Trust Fund or the Upper-Tier REMIC or Lower-Tier REMIC formed hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class of Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class X and Class R
Certificates), the amount of Mortgage Deferred Interest allocated to such Class
of Certificates pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Master Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Depositor, or any
Mortgage Loan Seller or 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 has been obtained, if
such consent, approval or waiver sought from such party would in any way
increase its compensation or limit its obligations as Master Servicer, Special
Servicer, Depositor or Trustee, as applicable, hereunder; provided, however, so
long as there is no Event of Default with respect to the Master Servicer or the
Special Servicer, the Master Servicer and the Special Servicer or such Affiliate
of either shall be entitled to exercise such Voting Rights with respect to any
issue which could reasonably be believed to adversely affect such party's
compensation or increase its obligations or liabilities hereunder; and provided,
further, however, that such restrictions shall not apply to the exercise of the
Special Servicer's rights (or the Master Servicer's or any Mortgage Loan
Seller's rights, if any) or any of their Affiliates as a member of the
Controlling Class. The Trustee and the Paying Agent shall each be entitled to
request and rely upon a certificate of the Master Servicer, the Special Servicer
or the Depositor in determining whether a Certificate is registered in the name
of an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer": As defined in Section 11.09.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-1A, Class A-3, Class
A-4 and Class A-SB Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.2790%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-5 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.4260%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.4500%.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-3 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.4290%.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-8 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.4890% and (ii) the Weighted
Average Net Mortgage Rate.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-7 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.4640%.
"Class A-SB Certificate": A Certificate designated as "Class A-SB"
on the face thereof, in the form of Exhibit A-4 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-SB Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.4150%.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the planned principal amount for such Distribution Date
specified in Schedule 3 hereto relating to the Class A-SB Certificates.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-9 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.5430% and (ii) the Weighted
Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.5830% and (ii) the Weighted
Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.6220% and (ii) the Weighted
Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.3450%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.1780%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.0790%.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.1470%.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.1470%.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.1470%.
"Class LA-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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-1A Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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-SB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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 LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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 Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-24 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.1470%.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.1470%.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.1470%.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.1470%.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-23 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class of Certificates for
the immediately preceding Distribution Date and (ii) any outstanding Class
Unpaid Interest Shortfall payable to such Class of Certificates on such
preceding Distribution Date over (b) the aggregate amount in respect of interest
actually distributed to such Class of Certificates on such immediately preceding
Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class
of Certificates as of the initial Distribution Date is zero. No interest shall
accrue on Class Unpaid Interest Shortfalls.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all the Components.
"Class X Pass-Through Rate": With respect to any Distribution Date,
the weighted average of the Class X Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class X Strip Rate": With respect to any Class of the 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.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": November 28, 2006.
"Closing Date Deposit Amount": $33,312.50, representing the
aggregate amount of interest that would have accrued on the related Stated
Principal Balance at the related Mortgage Rates during the Due Period ending in
December 2006, for those Mortgage Loans that do not have their first Monthly
Payment due until January 2007.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Paying Agent,
the Master Servicer, the Special Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The 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 approved by the CMSA for
commercial mortgage securities transactions generally as is reasonably
acceptable to the Master Servicer and the Special Servicer.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Paying Agent.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, as is reasonably acceptable to the Paying Agent, the Trustee, the
Master Servicer and the Special Servicer.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) CMSA Servicer Watch List, (2) CMSA Delinquent Loan
Status Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (6) CMSA Operating Statement Analysis Report, (7) CMSA NOI Adjustment
Worksheet, (8) CMSA Loan Level Reserve/LOC Report and (9) CMSA Reconciliation of
Funds Report). In addition, the CMSA Investor Reporting Package shall include
the CMSA Advance Recovery Report and the CMSA Realized Loss Report. The CMSA IRP
shall be substantially in the form of, and containing the information called for
in, the downloadable forms of the "CMSA IRP" 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 or reports as may from time to time
be approved by the CMSA for commercial mortgage backed securities transaction
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA IRP" available as of the
Closing Date on the CMSA website, as is reasonably acceptable to the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent. For the
purposes of the production of the CMSA Comparative Financial Status Report by
the Master Servicer or the Special Servicer of any such report that is required
to state information for any period prior to the Cut-off Date, the Master
Servicer or the Special Servicer, as the case may be, may conclusively rely
(without independent verification), absent manifest error, on information
provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x)
in the case of such a report produced by the Master Servicer, by the Special
Servicer (if other than the Master Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Master
Servicer (if other than the Special Servicer or an Affiliate thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicer,
the Paying Agent and the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer and the Paying Agent.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Operating Statement
Analysis Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Servicer Watch List and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non-Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Servicer Watch List" format
substantially in the form of and containing the information called for therein
for the Mortgage Loans, or such other form (including other portfolio review
guidelines) for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Servicer Watch List"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans, the separate account created and maintained by the Companion Paying Agent
pursuant to Section 3.04(b) and held on behalf of the Companion Holders, which
shall be entitled "Xxxxx Fargo Bank, N.A., as Companion Paying Agent for the
Companion Holders of the Companion Loans, relating to the X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2006-CIBC17, Commercial Mortgage Pass
Through Certificates, Series 2006-CIBC17." The Companion Distribution Account
shall not be an asset of the Trust Fund, the Lower-Tier REMIC or the Upper-Tier
REMIC, but instead shall be held by the Companion Paying Agent on behalf of the
Companion Holders. Any such account shall be an Eligible Account.
Notwithstanding the foregoing, if the Master Servicer and the Companion Paying
Agent are the same entity, the Companion Distribution Account may be the
subaccount referenced in the second paragraph of Section 3.04(b).
"Companion Holder": Each of the holders of record of the Companion
Loans.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The Master Servicer in its role as
Companion Paying Agent appointed pursuant to Section 3.30.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls incurred in connection
with voluntary principal prepayments received in respect of the Mortgage Loans
for the related Distribution Date (other than a Specially Serviced Mortgage Loan
or a Mortgage Loan on which the Special Servicer allowed a prepayment on a date
other than the applicable Due Date) and (ii) the aggregate of (A) that portion
of the Master Servicer's Servicing Fees for such Distribution Date that is, in
the case of each and every Mortgage Loan and REO Loan for which such Servicing
Fees are being paid for such Due Period, calculated at 0.005% per annum, and (B)
all Prepayment Interest Excesses received in respect of the Mortgage Loans for
the related Distribution Date and (C) to the extent earned solely on principal
prepayments, Net Investment Earnings received by the Master Servicer during such
Due Period with respect to the Mortgage Loans and related Companion Loan related
to such Prepayment Interest Shortfalls. However, if a Prepayment Interest
Shortfall occurs as a result of the Master Servicer's allowing the related
Mortgagor to deviate from the terms of the related Mortgage Loan documents
regarding Principal Prepayments (other than (X) subsequent to a 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 Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (1) all Servicing Fees with respect to the Master Servicer
for such Due Period, (2) all Prepayment Interest Excesses with respect to the
Master Servicer and (3) to the extent earned solely on Principal Prepayments,
Net Investment Earnings received by the Master Servicer during such Due Period
with respect to the Mortgage Loan subject to such Principal Prepayment. In no
event will the rights of the Certificateholders to offset the aggregate
Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0X, Xxxxxxxxx
XX-0, Component XA-4, Component XA-SB, Component XA-J, Component XA-M, Component
XB, Component XC, Component XD, Component XE, Component XF, Component XG,
Component XH, Component XJ, Component XK, Component XL, Component XM, Component
XN, Component XP and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1": One of the 21 components of the Class 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 XA-1A": One of the 21 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A Uncertificated Interest as of any
date of determination.
"Component XA-3": One of the 21 components of the Class 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 XA-4": One of the 21 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-4 Uncertificated Interest as of any
date of determination.
"Component XA-SB": One of the 21 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-SB Uncertificated Interest as of any
date of determination.
"Component XA-J": One of the 21 components of the Class 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 XA-M": One of the 21 components of the Class 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 XB": One of the 21 components of the Class 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 XC": One of the 21 components of the Class 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 XD": One of the 21 components of the Class 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 XE": One of the 21 components of the Class 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 XF": One of the 21 components of the Class 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 XG": One of the 21 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LG Uncertificated Interest as of any date of determination.
"Component XH": One of the 21 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LH Uncertificated Interest as of any date of determination.
"Component XJ": One of the 21 components of the Class 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 XK": One of the 21 components of the Class 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 XL": One of the 21 components of the Class 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 XM": One of the 21 components of the Class 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 XN": One of the 21 components of the Class 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 XNR": One of the 21 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XP": One of the 21 components of the Class 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.
"Com Realty Portfolio AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Com Realty Portfolio AB Mortgage
Loan.
"Com Realty Portfolio AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 25.
"Com Realty Portfolio Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of October 13, 2006, by and
between CIBC Inc., as the A Note Holder, and CBA Mezzanine Capital Finance LLC,
as the B Note Holder. The Com Realty Portfolio Intercreditor Agreement relates
to the Com Realty Portfolio AB Mortgage Loan.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The corporate trust office of the Trustee
and the Paying Agent at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2006-CIBC17.
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the Master Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four most
recent calendar quarters preceding the repurchase or substitution shall not be
less than the greater of (a) the weighted average Debt Service Coverage Ratio
for all such related Crossed Loans, including the affected Crossed Loan, for the
four most recent calendar quarters preceding the repurchase or substitution, and
(b) 1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller shall not be greater than the lesser of (a) the weighted
average LTV Ratio for all such related Crossed Loans, including the affected
Crossed Loan, determined as of the Cut-off Date based upon an Appraisal obtained
by the Special Servicer at the expense of the related Mortgage Loan Seller and
(b) 75%, (iii) the Mortgage Loan Seller, at its expense, shall have furnished
the Trustee with an Opinion of Counsel that any modification relating to the
repurchase or substitution of a Crossed Loan shall not cause an Adverse REMIC
Event, (iv) the related Mortgage Loan Seller causes the affected Crossed Loan to
become not cross-collateralized and cross-defaulted with the remaining related
Crossed Loans prior to such repurchase or substitution or otherwise forbears
from exercising enforcement rights against the Primary Collateral of any Crossed
Loan remaining in the Trust Fund and (v) the Directing Certificateholder shall
have consented to the repurchase or substitution of the affected Crossed Loan,
which consent shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in November 2006, or, with respect to those Mortgage
Loans that were originated in October 2006 and have their first Due Date in
December 2006, November 1, 2006, or, with respect to those Mortgage Loans
originated in November 2006 and have their first Due Date in either December
2006 or January 2007, the origination date.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the Master Servicer or Special Servicer
has, by written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt,
a defaulted Companion Loan does not constitute a "Defaulted Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(k).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository 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": 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.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The initial Directing
Certificateholder shall be American Capital Strategies, Ltd. Thereafter, the
Directing Certificateholder shall be the Controlling Class Certificateholder (or
a representative thereof) identified to the Master Servicer, the Special
Servicer, and the Trustee and the Paying Agent selected by more than 50% of the
Controlling Class Certificateholders, by Certificate Balance, as certified by
the Certificate Registrar from time to time; provided, however, that (i) absent
such selection, or (ii) until a Directing Certificateholder is so selected or
(iii) upon receipt of a notice from a majority of the Controlling Class
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer designated, the Controlling Class Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class will be the
Directing Certificateholder. Notwithstanding the foregoing, with respect to the
Bank of America Plaza Whole Loan, any references to the Directing
Certificateholder in this Agreement shall be deemed to be references to the
holder of the Bank of America Plaza Mortgage Loan, which shall be entitled to
take those actions and receive those notices in connection with the Bank of
America Plaza Whole Loan that are set forth in the Bank of America Plaza
Intercreditor Agreement upon the receipt of no objection from, or upon
non-binding consultation with, the Bank of America Plaza Companion Noteholder
pursuant to the procedures set forth in the Bank of America Plaza Intercreditor
Agreement. In the event that the Directing Certificateholder and the Bank of
America Plaza Companion Noteholder disagree, the Bank of America Plaza
Intercreditor Agreement provides that the Directing Certificateholder's decision
will be binding upon the Bank of America Plaza Companion Noteholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or on behalf of a Companion Holder or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10% of the construction
of such building or improvement was completed before default became imminent),
other than through an Independent Contractor; provided, however, that an REO
Property shall not be considered to be Directly Operated solely because the
Trustee (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 or capital expenditures with respect
to such REO Property or takes other actions consistent with Treasury Regulations
Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States 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 a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any 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 (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
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 Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) of
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates (other than the Class X Certificates) for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class of Certificates pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account, all of which may be subaccounts
of a single Eligible Account.
"Distribution Date": The 12th day of each month, or, if such 12th
day is not a Business Day, on the next succeeding Business Day, beginning in
December 2006.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan or Companion Loan occurring in the month
preceding the month in which such Distribution Date occurs or the date that
would have been the Due Date if the Mortgage Loan had a Due Date in December
2006 and ending on and including the Due Date for such Mortgage Loan or
Companion Loan occurring in the month in which such Distribution Date occurs.
Notwithstanding the foregoing, in the event that the last day of a Due Period
(or applicable grace period) is not a Business Day, any Monthly Payments
received with respect to the Mortgage Loans or Companion Loan relating to such
Due Period on the Business Day immediately following such day shall be deemed to
have been received during such Due Period and not during any other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), (A) the long-term unsecured debt obligations of
which are rated at least "A+" by S&P, if the deposits are to be held in such
account for 30 days or more, and the short-term debt obligations of which have a
short-term rating of not less than "A-1" by S&P, if the deposits are to be held
in such account for less than 30 days, (B) the long-term unsecured debt
obligations of which are rated at least "Aa3" by Moody's, if the deposits are to
be held in such account for 30 days or more, and the short-term debt obligations
of which have a short-term rating of not less than "P-1" from Moody's, if the
deposits are to be held in such account for less than 30 days, (C) the long term
unsecured debt obligations of which are rated at least "AA-" by Fitch, if the
deposits are to be held in such account for 30 days or more, and the short-term
debt obligations of which have a short-term rating of not less than "F-1" from
Fitch, if the deposits are to be held in such account for less than 30 days, (D)
an account or accounts maintained with PNC Bank, National Association so long as
PNC Bank, National Association's long term unsecured debt rating shall be at
least "A" from S&P and Fitch and "A-1" from Moody's (if the deposits are to be
held in the account for more than 30 days) or PNC Bank, National Association's
short term deposit or short term unsecured debt rating shall be at least "F-1"
from Fitch, "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), (E) an account maintained with Xxxxx
Fargo Bank, N.A., a wholly-owned subsidiary of Xxxxx Fargo & Co., provided that
such subsidiary's or its parent's (x) commercial paper, short-term unsecured
debt obligations or other short-term deposits are rated at least "F-1" in the
case of Fitch and "P-1" in the case of Moody's (and if any Bank of America
Companion Loan Securities have been issued and are rated by S&P, "A-1" by S&P),
if the deposits are to be held in the account for 30 days or less, or (y)
long-term unsecured debt obligations are rated at least "AA-" in the case of
Fitch and "Aa3" in the case of Moody's (and if any Bank of America Companion
Loan Securities have been issued and are rated by S&P, "AA-" by S&P), if the
deposits are to be held in the account for more than 30 days, and (F) such other
account or accounts with respect to which each of the Rating Agencies shall have
confirmed in writing that the then current rating assigned to any of the
Certificates or any Bank of America Plaza Companion Loan Securities will not be
qualified, downgraded or withdrawn by reason thereof or (ii) a segregated trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company that, in either case,
has corporate trust powers, acting in its fiduciary capacity, provided that any
state chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b).
Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": An "environmental site assessment" as
such term is defined in, and meeting the criteria of, the American Society of
Testing Materials Standard Section E 1527-00, or any successor thereto.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class P or Class NR Certificate; provided that any such Certificate:
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer of such Certificate, either (i) it is
rated in one of the four highest generic ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would permit the transfer of such
Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations of the Commission thereunder.
"Xxxxxx Xxx": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan (and, if
applicable, any defaulted Companion Loan) or REO Property (other than a Mortgage
Loan or REO Property, as the case may be, that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan
Purchase Agreement, the Controlling Class Option Holder, the applicable
Companion Holder or the Special Servicer pursuant to Section 3.18(b), any
mezzanine lender pursuant to Section 3.18(e) or the Master Servicer, Special
Servicer, the Holders of the Controlling Class, or the Holders of the Class LR
Certificates pursuant to Section 9.01) that there has been a recovery of all
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other
payments or recoveries that, in the Special Servicer's judgment, which judgment
was exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Paying Agent, the Master Servicer, the Directing
Certificateholder and the Special Servicer, and specific ratings of Fitch herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or
Companion Loan, as applicable, the excess of (i) Liquidation Proceeds of the
Mortgage Loan or Companion Loan or related REO Property net of any related
Liquidation Expenses, Unliquidated Advances, unreimbursed Advances, Liquidation
Fees, unreimbursed interest on Advances, unpaid Servicing Fees, and unpaid
Special Servicing Fees and additional Trust Fund expenses over (ii) the Purchase
Price for such Mortgage Loan or Companion Loan, as applicable, on the date on
which such Liquidation Proceeds were received. For the avoidance of doubt,
Gain-on-Sale Proceeds allocable to a Companion Loan shall not be assets of the
Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Paying
Agent, pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17, Gain-on-Sale Reserve Account."
Any such account shall be an Eligible Account or a subaccount of an Eligible
Account.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, 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": When used with respect to any accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any specified
Person, any such Person who (i) is in fact independent of the Trustee, the
Paying Agent, the Depositor, the Master Servicer, the Special Servicer, the
Directing Certificateholder, the Companion Holders and all Affiliates thereof,
(ii) does not have any material direct financial interest in or any material
indirect financial interest in any of the Trustee, the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder, the Companion Holders or any Affiliate thereof and (iii) is
not connected with the Trustee, the Paying Agent, the Depositor, the Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Holders 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 Trustee, the
Paying Agent, the Depositor, the Master Servicer, the Special Servicer, the
Directing Certificateholder, the Companion Holders or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Paying Agent, the Depositor, the Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Holders or any Affiliate thereof, as the case may be, provided such ownership
constitutes less than 1% of the total assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust 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
Paying Agent, the Master Servicer, any Companion Holder or the Trust, delivered
to the Trustee, the Paying Agent, any Companion Holder and the Master Servicer),
so long as the Trust does not receive or derive any income from such Person and
provided that the relationship between such Person and the Trust 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 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, the Paying Agent and the Master Servicer of an Opinion
of Counsel, which shall be at no expense to the Trustee, the Paying Agent, the
Master Servicer or the Trust Fund, to the effect that the taking of any action
in respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to 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 Purchaser": X.X. Xxxxxx Securities Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of the Bank of America Plaza Mortgage
Loan or any AB Mortgage Loan, to the extent any portion of such proceeds are
received by the Master Servicer in connection with the Bank of America Plaza
Mortgage Loan or such AB Mortgage Loan, as applicable, pursuant to the
allocations set forth in the related Intercreditor Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreement": Each of the Bank of America Plaza
Intercreditor Agreement, the Com Realty Portfolio Intercreditor Agreement, the
Saint Rita's Intercreditor Agreement, The Patio Shops Intercreditor Agreement,
the Towne Center at Xxxxxxxx Trail Intercreditor Agreement, the Xxxxxx Oceanics
Building Intercreditor Agreement and the River Xxxx Apartments Intercreditor
Agreement, and any intercreditor agreement entered into in connection with the
issuance to the direct or indirect equity holders in the Mortgagor of any future
mezzanine indebtedness permitted under the related Mortgage Loan documents.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or the Uncertificated Lower-Tier Interests and any Distribution
Date, the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs, calculated assuming that each month has 30 days and
each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates for such Distribution Date and any
Accrued Interest From Recoveries for such Class, to the extent not previously
paid for all prior Distribution Dates.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.25 in the name of "LaSalle Bank National Association, as Paying Agent,
in trust for the registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17, Interest Reserve Account," into which the amounts set forth
in Section 3.25 shall be deposited directly and which must be an Eligible
Account or subaccount of an Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, each Companion Holder (but only with respect to the related AB
Mortgage Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"Liquidation Event": 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 by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the Master Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01 or acquired by the
Sole Certificateholder in exchange for its Certificates pursuant to Section
9.01; (vi) such Mortgage Loan is purchased by (a) the applicable Companion
Holder pursuant to or as contemplated by Section 3.18(d) or (b) a mezzanine
lender pursuant to the related Intercreditor Agreement; or (vii) such Mortgage
Loan is purchased by the Bank of America Plaza Companion Noteholder pursuant to
the Bank of America Plaza Intercreditor Agreement. With respect to any REO
Property (and the related REO 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, the Holders
of the Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01; or (iii) such REO Property is purchased by (a) the applicable
Companion Holder pursuant to or as contemplated by Section 3.18(d) or (b) a
mezzanine lender pursuant to the related Intercreditor Agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property as to which the
Special Servicer receives (i) a full or discounted payoff (or an unscheduled
partial payment to the extent such prepayment is required by the Special
Servicer as a condition to a workout) with respect thereto from the related
Mortgagor or (ii) any Liquidation Proceeds or Insurance and Condemnation
Proceeds with respect to the related Mortgage Loan, or REO Property (in any
case, other than amounts for which a Workout Fee has been paid, or will be
payable), equal to the product of the Liquidation Fee Rate and the proceeds of
such full or discounted payoff or other partial payment or the Liquidation
Proceeds or Insurance and Condemnation Proceeds (net of the related costs and
expenses associated with the related liquidation) related to such liquidated
Specially Serviced Mortgage Loan or REO Property, as the case may be; provided,
however, that no Liquidation Fee shall be payable with respect to any event
described in (1) clause (iii)(A) of the definition of "Liquidation Proceeds" if
such purchase occurs within the first 90 days after the Special Servicer's
initial determination of the fair value of such Specially Serviced Mortgage
Loan, (2) clause (iv) of the definition of "Liquidation Proceeds" if such
repurchase occurs within the time parameters (including any applicable extension
period) set forth in this Agreement and in the related Mortgage Loan Purchase
Agreement, (3) clause (v) and clause (vi) of the definition of "Liquidation
Proceeds," (except that a Liquidation Fee will be payable with respect to any
purchase by a mezzanine lender or the holder of a Companion Loan if such
purchase does not occur within 90 days following the date the related Mortgage
Loan becomes subject to such purchase option under the related Intercreditor
Agreement or (4) with respect to the Bank of America Plaza Companion Note, a
purchase or repurchase of the Bank of America Plaza Companion Note under the
Other Pooling and Servicing Agreement (for the avoidance of doubt, a Liquidation
Fee payable under this Agreement, in accordance herewith, may be payable on the
entire Bank of America Plaza Whole Loan).
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan through a trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage; (ii)
the realization upon any deficiency judgment obtained against a Mortgagor; (iii)
(A) the purchase of a Defaulted Mortgage Loan by the Option Holder pursuant to
Section 3.18(a) or (B) any other sale thereof pursuant to Section 3.18(c) and
Section 3.18(e); (iv) the repurchase of a Mortgage Loan by the applicable
Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement; (v) the purchase of a Mortgage Loan or REO Property by the Holders of
the Controlling Class, the Special Servicer, the Master Servicer or the Holders
of the Class LR Certificates pursuant to Section 9.01; or (vi) the purchase of a
Mortgage Loan or an REO Property by (a) the applicable Companion Holder pursuant
to Section 3.18(d), or (b) any mezzanine lender under a mezzanine loan made to
an owner of the Mortgagor of the related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 1
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 2 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 2 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 1 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 2 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 1 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 2 Principal Distribution Amount).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-3, Class A-4 and Class A-SB
Certificates, exceeds (2) the aggregate amount distributed in respect of
principal on the Class A-1, Class A-3, Class A-4 and Class A-SB Certificates on
the prior Distribution Date. There will be no Loan Group 1 Principal Shortfall
on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i), (ii) and (iii)
above, if any of such amounts reimbursed from principal collections on the Group
2 Mortgage Loans are subsequently recovered on the related Mortgage Loan,
subject to the application of any recovery to increase the Loan Group 1
Principal Distribution Amount as required under clause (II) of the definition of
"Loan Group 1 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 2 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 1 Principal Distribution Amount).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan. As used in this Agreement, the term "Loan Pair" shall include the
Bank of America Plaza Whole Loan.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Paying Agent, in trust for the registered Holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17, Lower-Tier
Distribution Account." Any such account, accounts or sub-accounts shall be an
Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": 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
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising a portion
of the Trust Fund, the assets of which consist of the Mortgage Loans, any REO
Property with respect thereto (or an allocable portion thereof, in the case of
the AB Mortgage Loans or the Bank of America Plaza Mortgage Loan, such amounts
as shall from time to time be held in the Certificate Account (other than with
respect to the Companion Loans), the REO Account, if any, the Interest Reserve
Account, the Gain-on-Sale Reserve Account and the Lower-Tier Distribution
Account, and all other property included in the Trust Fund that is not in the
Upper-Tier REMIC.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Master Servicer": Xxxxx Fargo Bank, N.A., a national banking
association, and its successors in interest and assigns, or any successor Master
Servicer appointed as allowed herein.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Merger Notice": As defined in Section 6.02(b).
"Mezz Cap AB Mortgage Loan": The Com Realty Portfolio Mortgage Loan,
the Saint Rita's Mortgage Loan, The Patio Shops Mortgage Loan, the Towne Center
at Xxxxxxxx Trail Mortgage Loan, the Xxxxxx Oceanics Building Mortgage Loan and
the River Xxxx Apartments Mortgage Loan.
"Mezz Cap AB Mortgage Loan Intercreditor Agreements": The
Intercreditor Agreements related to the Mezz Cap AB Mortgage Loans.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest on such
Mortgage Loan or Companion Loan, including any Balloon Payment, which is payable
(as the terms of the applicable Mortgage Loan or Companion Loan may be changed
or modified in connection with a bankruptcy or similar proceedings involving the
related Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to pursuant to the terms hereof) by a Mortgagor from time to
time under the related Mortgage Note and applicable law, without regard to any
acceleration of principal of such Mortgage Loan or Companion Loan by reason of
default thereunder.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master Servicer and the Special Servicer, and
specific ratings of Moody's herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan and Companion Loan,
the mortgage, deed of trust or other instrument securing a Mortgage Note and
creating a lien on the fee and/or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of LaSalle Bank
National Association, as trustee for the registered holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Trust 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17"
or in blank, provided that the requirements of this clause (i) will
be satisfied by delivery of a signed lost note affidavit and
indemnity properly assigned or endorsed to the Trustee as described
above, with a copy of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon (except for recording information not yet
available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through
Certificates, Series 2006-CIBC17" or in blank and, in the case of
the Bank of America Plaza Whole Loan, in its capacity as "lead
lender" under the Bank of America Plaza Intercreditor Agreement on
behalf of the Bank of America Plaza Companion Noteholder;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon (except for recording information not
yet available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through
Certificates, Series 2006-CIBC17" or in blank and, in the case of
the Bank of America Plaza Whole Loan, in its capacity as "lead
lender" under the Bank of America Plaza Intercreditor Agreement on
behalf of the Bank of America Plaza Companion Noteholder;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form (except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), executed by the applicable Mortgage Loan Seller
to "LaSalle Bank National Association, as trustee for the registered
holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17" or in blank and, in the case of the Bank of America
Plaza Whole Loan, in its capacity as "lead lender" under the Bank of
America Plaza Intercreditor Agreement on behalf of the Bank of
America Plaza Companion Noteholder;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company, provided
the policy is issued within 18 months from the Closing Date, in
connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon, with the exception of filing or recording
information not yet available because the UCC Financing Statement,
assignment or continuation statement, as the case may be, has not
yet been returned from the applicable filing or recording office),
and to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to, or pari passu with, such Mortgage Loan as set
forth in such intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a copy thereof and any related
ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any property management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of any lock-box or cash management agreement(s);
(xxiii) a list related to such Mortgage Loan indicating the
related Mortgage Loan documents included in the related Mortgage
File (the "Mortgage Loan Checklist");
(xxiv) a copy of all environmental reports that were received
by the applicable Mortgage Loan Seller relating to the relevant
Mortgaged Property; and
(xxv) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of
each Mortgage Note relating to such Companion Loan(s), rather than
the original;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
for the Companion Loan otherwise described above shall be construed to instead
refer to a photocopy of such Mortgage Note) and (d) the execution and/or
recordation of any assignment of Mortgage, any separate assignment of Assignment
of Leases and any assignment of any UCC Financing Statement in the name of the
Trustee shall not be construed to limit the beneficial interest of the related
Companion Holder(s) in such instrument and the benefits intended to be provided
to them by such instrument, it being acknowledged that (i) the Trustee shall
hold such record title for the benefit of the Trust as the holder of the related
Mortgage Loan and the related Companion Holder(s) collectively and (ii) any
efforts undertaken by the Trustee, the Master Servicer, or the Special Servicer
on its behalf to enforce or obtain the benefits of such instrument shall be
construed to be so undertaken by Trustee, the Master Servicer or the Special
Servicer for the benefit of the Trust as the holder of the applicable Mortgage
Loan and the related Companion Holder(s) collectively.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number and loan servicing number
(as specified in Annex A-1 to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state, county and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(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) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity 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 applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) [Reserved];
(xiv) [Reserved];
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period;
(xxvi) the applicable Loan Group to which the Mortgage Loan
belongs; and
(xxvii) the number of units, pads or square feet with respect
to each Mortgaged Property.
Such Mortgage Loan Schedule shall also 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": Each of JPMorgan Chase Bank, National
Association, a national banking association, or its successor in interest and
CIBC Inc., a Delaware corporation, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law; or (ii) any Mortgage Loan or Companion Loan after its
Maturity Date, the annual rate described in clause (i) above determined without
regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such period
on funds relating to the Trust Fund held in such account, exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Master
Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or
similar proceeding involving the Mortgagor; provided, further, that if any
Mortgage Loan does not accrue interest on the basis of a 360-day year consisting
of twelve 30-day months, then, solely for purposes of calculating Pass-Through
Rates, the Net Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest) in respect of such
Mortgage Loan during such one-month period at the related Net Mortgage Rate;
provided, further, that, with respect to each Interest Reserve Loan, the Net
Mortgage Rate for the one month period (A) preceding the Due Dates that occur in
January and February in any year which is not a leap year or preceding the Due
Date that occurs in February in any year which is a leap year (in either case,
unless the related Distribution Date is the final Distribution Date), will be
the per annum rate stated in the related Mortgage Note less the related
Administrative Cost Rate and (B) preceding the Due Date in March (or February,
if the related Distribution Date is the final Distribution Date), will be
determined inclusive of the amounts withheld in the immediately preceding
January and February, if applicable. With respect to any REO Loan, the Net
Mortgage Rate shall be calculated as described above, determined as if the
predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of 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 Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided, that Workout Delayed Reimbursement
Amounts shall constitute a Nonrecoverable Advance only when the Person making
such determination in accordance with the procedures specified in the definition
of Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as
applicable, and taking into account factors such as all other outstanding
Advances, either (a) has determined in accordance with the Servicing Standards
or the standards applicable to the Trustee as set forth in the definitions of
"Nonrecoverable P&I Advance" and "Nonrecoverable Servicing Advance" that such
Workout Delayed Reimbursement Amounts would not ultimately be recoverable from
Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of the related Mortgage Loan or REO Loan, or (b) has
determined in accordance with the Servicing Standards or such other applicable
standard that such Workout Delayed Reimbursement Amounts, along with any other
Workout Delayed Reimbursement Amounts and Nonrecoverable Advances, would not
ultimately be recovered from aggregate principal collections in respect of the
pool of the Mortgage Loans or REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Master Servicer or the Trustee, as applicable, will
not be ultimately recoverable, together with any accrued and unpaid interest
thereon at the Reimbursement Rate, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Loan; provided, however, that the
Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standards, that any P&I Advance previously made or proposed to be made is a
Nonrecoverable P&I Advance and shall deliver to the Master Servicer (and with
respect to the Bank of America Plaza Mortgage Loan, to any Other Servicer) and
the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the Master Servicer and the Trustee, provided,
however, the Special Servicer shall have no obligation to make an affirmative
determination that any P&I Advance is or would be recoverable and in the absence
of a determination by the Special Servicer that such P&I Advance is or would be
a P&I Non-Recoverable Advance, such decision shall remain with the Master
Servicer or Trustee, as applicable. Notwithstanding the foregoing, if the
Special Servicer makes a determination that only a portion, and not all, of any
previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the
Master Servicer and the Trustee shall have the right to make its own subsequent
determination that any remaining portion of any such previously made or proposed
P&I Advance is a Nonrecoverable P&I Advance. In making such recoverability
determination, the Master Servicer, Special Servicer or Trustee, as applicable,
will be entitled (a) to consider (among other things) (i) the obligations of the
Mortgagor under the terms of the related Mortgage Loan as it may have been
modified and (ii) the related Mortgaged Properties in their "as is" or then
current conditions and occupancies, as modified by such party's assumptions
(consistent with the Servicing Standards in the case of the Master Servicer and
the Special Servicer or in its good faith business judgment in the case of the
Trustee, solely in its capacity as Trustee) regarding the possibility and
effects of future adverse change with respect to such Mortgaged Properties, (b)
to estimate and consider (among other things) future expenses, (c) to estimate
and consider (consistent with the Servicing Standards in the case of the Master
Servicer and the Special Servicer or in its good faith business judgment in the
case of the Trustee, solely in its capacity as Trustee) (among other things) the
timing of recoveries and (d) to give due regard to the existence of any
Nonrecoverable Advances which, at the time of such consideration, the recovery
of which are being deferred or delayed by the Master Servicer, in light of the
fact that Related Proceeds are a source of recovery not only for the Advance
under consideration but also a potential source of recovery for such delayed or
deferred Advance. In addition, any Person, in considering whether a P&I Advance
is a Nonrecoverable Advance, will be entitled to give due regard to the
existence of any outstanding Nonrecoverable Advance or Workout Delayed
Reimbursement Amount with respect to other Mortgage Loans which, at the time of
such consideration, the reimbursement of which is being deferred or delayed by
the Master Servicer or the Trustee because there is insufficient principal
available for such reimbursement, in light of the fact that proceeds on the
related Mortgage Loan are a source of reimbursement not only for the P&I Advance
under consideration, but also as a potential source of reimbursement of such
Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may
be being deferred or delayed. In addition, any such Person may update or change
its recoverability determinations at any time (but not reverse any other
Person's determination that an Advance is a Nonrecoverable Advance) and,
consistent with the Servicing Standards, in the case of the Master Servicer or
in its good faith business judgment in the case of the Trustee (solely in its
capacity as Trustee), may obtain, promptly upon request, from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for making a
recoverability determination. Absent bad faith, the Master Servicer's, Special
Servicer's or the Trustee's determination as to the recoverability of any P&I
Advance shall be conclusive and binding on the Certificateholders. The
determination by the Master Servicer, the Special Servicer or the Trustee, as
applicable, that the Master Servicer or the Trustee, as applicable, has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, or any updated or changed
recoverability determination, shall be evidenced by an Officer's Certificate
delivered by either the Special Servicer or the Master Servicer to the other and
to the Trustee, the Paying Agent, the Directing Certificateholder (and in the
case of the Bank of America Plaza Mortgage Loan, any Other Servicer), the
Depositor, or by the Trustee to the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent and the Directing Certificateholder (and in the case
of the Bank of America Plaza Mortgage Loan, any Other Servicer). 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 be accompanied
by, to the extent available, income and expense statements, rent rolls,
occupancy status, property inspections and any other information used by the
Master Servicer, the Special Servicer or the Trustee, as applicable, to make
such determination and shall include any existing Appraisal of the related
Mortgage Loan or Mortgaged Property). The Trustee shall be entitled to
conclusively rely on the Master Servicer's determination that a P&I Advance is
or would be nonrecoverable and shall conclusively rely on and be bound by any
determination of the Special Servicer that a P&I Advance is or would be
nonrecoverable, and the Master Servicer shall conclusively rely on and be bound
by the Special Servicer's determination that a P&I Advance is or would be
nonrecoverable. In the case of a cross collateralized Mortgage Loan, such
recoverability determination shall take into account the cross collateralization
of the related cross collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable judgment 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, at the Reimbursement Rate, from Late
Collections or any other recovery on or in respect of such Mortgage Loan or REO
Property. In making such recoverability determination, such Person will be
entitled (a) to consider (among other things) (i) the obligations of the
Mortgagor under the terms of the related Mortgage Loan as it may have been
modified and (ii) the related Mortgaged Properties in their "as is" or then
current conditions and occupancies, as modified by such party's assumptions
(consistent with the Servicing Standards in the case of the Master Servicer or
the Special Servicer or in its good faith business judgment in the case of the
Trustee, solely in its capacity as Trustee) regarding the possibility and
effects of future adverse change with respect to such Mortgaged Properties, (b)
to estimate and consider (consistent with the Servicing Standards in the case of
the Master Servicer or the Special Servicer or in its good faith business
judgment in the case of the Trustee, solely in its capacity as Trustee) (among
other things) future expenses and (c) to estimate and consider (among other
things) the timing of recoveries. In addition, any Person, in considering
whether a Servicing Advance is a Nonrecoverable Servicing Advance, will be
entitled to give due regard to the existence of any Nonrecoverable Advance or
Workout Delayed Reimbursement Amounts with respect to other Mortgage Loans
which, at the time of such consideration, the recovery of which are being
deferred or delayed by the Master Servicer, 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 Amounts which are or may
be being deferred or delayed. In addition, any such Person may update or change
its recoverability determinations at any time (but not reverse any other
Person's determination that an Advance is a Nonrecoverable Advance) and,
consistent with the Servicing Standards, in the case of the Master Servicer, may
obtain, promptly upon request, from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for making a recoverability determination. The
determination by the Master Servicer, the Special Servicer or the Trustee, as
the case may be, that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, or any updated or changed recoverability determination, shall be
evidenced by an Officer's Certificate delivered by either of the Special
Servicer or Master Servicer to the other and to the Trustee, the Paying Agent,
the Directing Certificateholder (and in the case of the Bank of America Plaza
Mortgage Loan, any Other Servicer), and the Depositor, or by the Trustee to the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Directing Certificateholder (and in the case of the Bank of America Plaza
Mortgage Loan, any Other Servicer); provided, however, that the Special Servicer
may, at its option, in consultation with the Directing Certificateholder, make a
determination in accordance with the Servicing Standards, that any Servicing
Advance previously made or proposed to be made is a Nonrecoverable Servicing
Advance and shall deliver to the Master Servicer and the Trustee notice of such
determination. Any such determination shall be conclusive and binding on the
Master Servicer, the Special Servicer and the Trustee, provided, however the
Special Servicer shall have no such obligation to make an affirmative
determination that any Servicing Advance is or would be recoverable and in the
absence of a determination by the Special Servicer that such Servicing Advance
is or would be a Nonrecoverable Servicing Advance, such decision shall remain
with the Master Servicer or the Trustee, as applicable. Notwithstanding the
foregoing, if the Special Servicer makes a determination that only a portion,
and not all, of any previously made or proposed Servicing Advance is a
Nonrecoverable Servicing Advance, the Master Servicer and the Trustee shall have
the right to make its own subsequent determination that any remaining portion of
any such previously made or proposed Servicing Advance is a Nonrecoverable
Servicing Advance. 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 be accompanied by, to the extent available, related income and
expense statements, rent rolls, occupancy status and property inspections, and
shall include any existing Appraisal of the related Mortgage Loan or Mortgaged
Property). The Special Servicer shall promptly furnish any party required to
make Servicing Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make Servicing Advances may reasonably request for purposes of
making recoverability determinations. The Trustee shall be entitled to
conclusively rely on the Master Servicer's determination that a Servicing
Advance is or would be nonrecoverable and shall conclusively rely on and be
bound by any determination of the Special Servicer that a Servicing Advance is
or would be nonrecoverable, and the Master Servicer shall conclusively rely on
and be bound by the Special Servicer's determination that a Servicing Advance is
or would be nonrecoverable. In the case of a cross collateralized Mortgage Loan,
such recoverability determination shall take into account the cross
collateralization of the related cross collateralized Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class NR, Class R or Class LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is owned
(or may be owned pursuant to the applicable partnership agreement), directly or
indirectly (other than through a U.S. corporation), by a Non-U.S. Person or (B)
if such Person is a U.S. Person with respect to whom income from a Residual
Certificate is attributable to a foreign permanent establishment of fixed base,
within the meaning of an applicable income treaty, of such Person or any other
U.S. Person.
"Notional Amount": In the case of the Class X Certificates, the
Class X Notional Amount. In the case of each Component, the amount set forth in
the applicable definition thereof.
"Offered Certificates": The Class A-1, Class X-0, Xxxxx X-0, Class
A-SB, Class A-1A, Class A-M, Class A-J, Class X, Class B, Class C and Class D
Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer or any Additional Servicer, as
the case may be, or a Responsible Officer of the Trustee or Paying Agent, as the
case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable in form and delivered to the Trustee and the Paying
Agent, except that any opinion of counsel relating to (a) the qualification of
the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC, (b) compliance with the
REMIC Provisions, or (c) the resignation of the Master Servicer, the Special
Servicer or the Depositor pursuant to Section 6.04, must be an opinion of
counsel who is in fact Independent of the Depositor, the Master Servicer or the
Special Servicer, as applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class X and the Residual Certificates), the initial
aggregate principal amount thereof as of the Closing Date, in each case as
specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X Notional
Amount, the initial Notional Amount thereof as of the Closing Date, as specified
in the Preliminary Statement.
"Other Pooling and Servicing Agreement": Any pooling and servicing
agreement that creates a trust fund whose assets include the Bank of America
Plaza Companion Note.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Other Securitization": As defined in Section 11.06.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.03
or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-3 Pass-Through Rate, the Class A-4 Pass-Through Rate, the Class A-SB
Pass-Through Rate, the Class A-1A Pass-Through Rate, the Class A-M Pass-Through
Rate, the Class A-J Pass-Through Rate, the Class B Pass-Through Rate, the Class
C Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through
Rate, the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class J Pass-Through Rate, the Class K Pass-Through Rate,
the Class L Pass-Through Rate, the Class M Pass-Through Rate, the Class N
Pass-Through Rate, the Class P Pass-Through Rate, the Class NR Pass-Through Rate
or the Class X Pass-Through Rate.
"Paying Agent": LaSalle Bank National Association, a national
banking association organized under the laws of the United States, or any
successor appointed thereto pursuant to Section 5.07 or any successor Paying
Agent appointed hereunder.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan) or Companion Loan (or successor REO Loan), any amounts actually
collected thereon (or, in the case of a Mortgage Loan or Companion Loan (or
successor REO Loan thereto) that is part of a Loan Pair, actually collected on
such Loan Pair and allocated and paid on such Mortgage Loan or Companion Loan
(or successor REO Loan) in accordance with the related Intercreditor Agreement)
that represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or prepayment premium.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or Original Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Residual
Certificate, the percentage interest is set forth on the face thereof.
"Performance Certification": As defined in Section 11.06.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent, or managed by the Paying Agent or any affiliate of the Paying Agent, if
otherwise qualifying hereunder), regardless whether issued by the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, 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 or Bank of America Plaza Companion Loan
Security as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) 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 rating categories of each
Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates (or,
insofar as there is then outstanding any class of Bank of America
Plaza Companion Loan Securities that is then rated by such Rating
Agency, such class of securities) as evidenced in writing;
(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 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 mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then current rating assigned by each Rating
Agency to any Class of Certificates (or, insofar as there is then
outstanding any class of Bank of America Plaza Companion Loan
Securities that is then rated by such Rating Agency, such class of
securities) as evidenced in writing; 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) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned by each Rating Agency to any Class of Certificates (or,
insofar as there is then outstanding any class of Bank of America
Plaza Companion Loan Securities that is then rated by such Rating
Agency, such class of securities) as evidenced in writing);
(vi) money market funds, rated in the highest rating
categories of each Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) 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 assigned by such Rating Agency to any Class of
Certificates (or, insofar as there is then outstanding any class of
Bank of America Plaza Companion Loan Securities that is then rated
by such Rating Agency, such class of securities) as evidenced in
writing and (b) which qualifies as a "cash flow investment" pursuant
to Section 860G(a)(6) of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall have a predetermined fixed dollar of principal due at maturity that cannot
vary or change and (b) 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; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the Master Servicer receives an Opinion of Counsel, at its own expense,
to the effect that such investment will not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC. Permitted Investments that are subject
to prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person or any agent thereof other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar based upon an opinion of counsel to the effect that the
transfer of an Ownership Interest in any Residual Certificate to such Person may
cause the Trust Fund to fail to qualify as one or more REMICs at any time that
the Certificates are outstanding and (c) a Person that is a Non-U.S. Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees),
to the extent collected from the related Mortgagor (without regard to any
prepayment premium or Yield Maintenance Charge actually collected), that would
have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment from and after such Due Date and ending on the date
of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such following Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Master
Servicer from the Servicing Fee to each Initial Sub-Servicer, which monthly fee
accrues at the rate per annum specified as such in the Sub-Servicing Agreement
with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York City edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class X
Certificates), an amount equal to the sum of (a) the Principal Shortfall for
such Distribution Date, (b) the Scheduled Principal Distribution Amount for such
Distribution Date and (c) the Unscheduled Principal Distribution Amount for such
Distribution Date; provided, that the Principal Distribution Amount for any
Distribution Date shall be reduced by the amount of any reimbursements of (i)
Nonrecoverable Advances plus interest on such Nonrecoverable Advances that are
paid or reimbursed from principal collections on the Mortgage Loans in a period
during which such principal collections would have otherwise been included in
the Principal Distribution Amount for such Distribution Date and (ii)
Workout-Delayed Reimbursement Amounts that were paid or reimbursed from
principal collections on the Mortgage Loans in a period during which such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date (provided, that, in the case of
clause (i) and (ii) above, if any of the amounts that were reimbursed from
principal collections on the Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will increase the Principal Distribution
Amount for the Distribution Date related to the period in which such recovery
occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class 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
P and Class NR Certificates for such preceding Distribution Date pursuant to
Section 4.01(a) on such preceding Distribution Date. The Principal Shortfall for
the initial Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchaser, each Mortgage
Loan Seller (solely with respect to the Mortgage Loans sold by such Mortgage
Loan Seller to the Trust) and certain financial market publishers (which
initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex Solutions, Inc.), any
Companion Holder, each party to this Agreement, the Directing Certificateholder,
any designee of the Depositor and any other Person who shall have provided the
Paying Agent with a certificate, using the form attached hereto as Exhibit S,
which form is available from the Paying Agent, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate
"Prospectus": The Prospectus, dated September 22, 2006, as
supplemented by the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement, dated November
16, 2006, relating to the offering of the Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan)
or, if applicable, Loan Pair to be purchased by a Mortgage Loan Seller pursuant
to Section 6 of the related Mortgage Loan Purchase Agreement, by the Majority
Controlling Class Certificateholder, the Special Servicer or the Master Servicer
pursuant to Section 3.18(b), by the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates
pursuant to Section 9.01 or to be otherwise sold pursuant to Section 3.18(d), a
price equal to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default Interest) to but not including
the Due Date immediately preceding the Determination Date for the
related Distribution Date in which such Purchase Price is included
in the Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or estimated to be incurred by the
Master Servicer, the Special Servicer, the Depositor and the Trustee
in respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation, including, without limitation, all legal
fees and expenses relating to the enforcement of such repurchase
obligation; plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c),
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Loan Pair, the term "REO Loan" shall mean the REO Loan with respect to both the
related Mortgage Loan and the related Companion Loans.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A-" by Fitch and "A3" by
Xxxxx'x and (ii) with respect to the fidelity bond and errors and omissions
Insurance Policy required to be maintained pursuant to Section 3.07(c), except
as set forth in Section 3.07(c), an insurance company that has a claims paying
ability (or the obligations which are guaranteed or backed by a company having
such claims paying ability) rated no lower than two ratings below the rating
assigned to the then highest rated outstanding Certificate, but in no event
lower than "A-" by Fitch and "A3" by Xxxxx'x (or, if not rated by one of such
Rating Agencies, then at least "A-" by two other nationally recognized
statistical rating organizations (which may include the other Rating Agencies))
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 by such Rating Agency to
any Class of Certificates (or, insofar as there is then outstanding any class of
Bank of America Plaza Companion Loan Securities that is then rated by such
Rating Agency, such class of securities) as evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360 day year consisting of twelve 30 day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan to value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current loan
to value ratio not higher than the then current loan to value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of
either of the REMICs established under this Agreement or the imposition of tax
on either of such REMICs other than a tax on income expressly permitted or
contemplated to be imposed by the terms of this Agreement, as determined by an
Opinion of Counsel; (xvii) have an engineering report with respect to the
related Mortgaged Property that will be delivered as a part of the related
Servicing File; (xviii) become a part of the same Loan Group as the deleted
Mortgage Loan; and (xix) be current in the payment of all scheduled payments of
principal and interest then due. In the event that more than one mortgage loan
is substituted for a deleted Mortgage Loan, then the amounts described in clause
(i) shall be determined on the basis of aggregate Stated Principal Balances and
each such proposed Qualified Substitute Mortgage Loan shall individually satisfy
each of the requirements specified in (ii) through (xix); provided, the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis;
provided further, that no individual Mortgage Rate (net of the Servicing Fee
Rate and the Trustee Fee Rate) shall be lower than the highest fixed Pass
Through Rate (and not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any class of Regular Certificates having a principal balance
then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee and the Directing
Certificateholders.
"Rated Final Distribution Date": As to each Class of Certificates,
December 12, 2043.
"Rating Agency": Each of Moody's and Fitch or their successors in
interest, and any other rating agencies rating any Bank of America Plaza
Companion Loan Securities. If no such rating agency nor any successor thereof
remains in existence, "Rating Agency" shall be deemed to refer to such
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent and the Master Servicer, and specific ratings of
Moody's and Fitch herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class 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 P, Class NR and Class X Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (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 AB Servicing Officer": Any officer or employee of the
Master Servicer or the Special Servicer, as applicable, involved in, or
responsible for, the administration and servicing of the Mortgage Loans or
Companion Loans, or this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee and/or the
Paying Agent by the Master Servicer or the Special Servicer, as applicable, as
such list may from time to time be amended.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates, the related Class of Uncertificated
Lower-Tier Interests and the related Components of Class X Certificates; for the
following Components of the Class X Certificates, the related Class of
Uncertificated Lower-Tier Interests and the related Class of Certificates set
forth below; and for the following Classes of Uncertificated Lower-Tier
Interests, the related Components of the Class X Certificates and the related
Class of Certificates set forth below:
Related Components
Related Uncertificated of Class X
Related Certificate Lower-Tier Interest Certificates
---------------------- ----------------------------------- ------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest XA-1
Class A-1A Certificate Class LA-1A Uncertificated Interest XA-1A
Class A-3 Certificates Class LA-3 Uncertificated Interest XA-3
Class A-4 Certificate Class LA-4 Uncertificated Interest XA-4
Class A-SB Certificate Class LA-SB Uncertificated Interest XA-SB
Class A-M Certificate Class LA-M Uncertificated Interest XA-M
Class A-J Certificate Class LA-J Uncertificated Interest XA-J
Class B Certificate Class LB Uncertificated Interest XB
Class C Certificate Class LC Uncertificated Interest XC
Class D Certificate Class LD Uncertificated Interest XD
Class E Certificate Class LE Uncertificated Interest XE
Class F Certificate Class LF Uncertificated Interest XF
Class G Certificate Class LG Uncertificated Interest XG
Class H Certificate Class LH Uncertificated Interest XH
Class J Certificate Class LJ Uncertificated Interest XJ
Class K Certificate Class LK Uncertificated Interest XK
Class L Certificate Class LL Uncertificated Interest XL
Class M Certificate Class LM Uncertificated Interest XM
Class N Certificate Class LN Uncertificated Interest XN
Class P Certificate Class LP Uncertificated Interest XP
Class NR Certificate Class LNR Uncertificated Interest XNR
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit X attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Paying Agent, the Master Servicer or the Special
Servicer, the term "Relevant Servicing Criteria" may refer to a portion of the
Relevant Servicing Criteria applicable to the Master Servicer, the Special
Servicer, the Trustee and/or the Paying Agent.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "LNR
Partners, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of LaSalle Bank National Association, as trustee, in
trust for registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17, REO Account." Any such account or accounts shall be an Eligible
Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan or Companion Loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Loan shall
be deemed to be outstanding for so long as the related REO Property remains part
of the Trust Fund and provides for Assumed Scheduled Payments on each Due Date
therefor, and otherwise has the same terms and conditions as its predecessor
Mortgage Loan or Companion Loan, including, without limitation, with respect to
the calculation of the Mortgage Rate in effect from time to time (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan or Companion Loan). Each REO Loan shall be deemed to have an
initial outstanding principal balance and Stated Principal Balance equal to the
outstanding principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan or Companion Loan as of the date of the related REO
Acquisition. All amounts due and owing in respect of the predecessor Mortgage
Loan or Companion Loan as of the date of the related REO Acquisition, including,
without limitation, accrued and unpaid interest, shall continue to be due and
owing in respect of a REO Loan. All amounts payable or reimbursable to the
Master Servicer, the Special Servicer or the Trustee, as applicable, in respect
of the predecessor Mortgage Loan or Companion Loan as of the date of the related
REO Acquisition, including, without limitation, any unpaid Special Servicing
Fees and Servicing Fees, additional Trust Fund expenses and any unreimbursed
Advances, together with any interest accrued and payable to the Master Servicer
or the Trustee, as applicable, in respect of such Advances in accordance with
Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable
to the Master Servicer or the Trustee, as applicable, in respect of an REO Loan.
In addition, Unliquidated Advances and Nonrecoverable Advances with respect to
such REO Loan, in each case, that were paid from collections on the Mortgage
Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso in the definition of "Principal
Distribution Amount", "Loan Group 1 Principal Distribution Amount" or "Loan
Group 2 Principal Distribution Amount" shall be deemed outstanding until
recovered. Collections in respect of each REO Loan (exclusive of the amounts to
be applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of unreimbursed Advances and interest thereon
and the costs of operating, managing, selling, leasing and maintaining the
related REO Property) shall be treated: first, as a recovery of accrued and
unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to, but not including, the Due Date in the Due Period of receipt;
second, as a recovery of Unliquidated Advances with respect to such REO Loan
that relate to Advances and were paid from collections on the Mortgage Loans and
resulted in principal distributed to the Certificateholders being reduced as a
result of the first proviso in the definition of "Principal Distribution
Amount", "Loan Group 1 Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount"; third, as a recovery of principal of such REO Loan to the
extent of its entire unpaid principal balance; fourth, as a recovery of
Nonrecoverable Advances, with respect to such REO Loan, that relate to Advances
and were paid from collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso in the definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal Distribution Amount";
and fifth, in accordance with the Servicing Standards, as a recovery of any
other amounts due and owing in respect of such REO Loan, including, without
limitation, (i) Penalty Charges and (ii) Yield Maintenance Charges, in that
order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement, with respect to a Mortgaged Property
securing a Loan Pair) and the Trustee (as holder of the Uncertificated
Lower-Tier Interests) 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. For the avoidance of doubt,
REO Property, to the extent allocable to a Companion Loan, shall not be an asset
of the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": The Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or any Servicing Function Participant engaged by such
parties as the case may be.
"Request for Release": A release signed by a Servicing Officer of
the Master Servicer or the Special Servicer, as applicable, in the form of
Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Paying Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee and the Paying Agent, and with respect to any successor Trustee
or the Paying Agent, any officer or assistant officer in the corporate trust
department of the successor Trustee or Paying Agent or any other officer of the
successor Trustee or Paying Agent customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee or the Paying Agent because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchaser and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"River Xxxx Apartments AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the River Xxxx Apartments AB Mortgage
Loan.
"River Xxxx Apartments AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 124.
"River Xxxx Apartments Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of May 19, 2006, by and
between JPMorgan Chase Bank, N.A., as the A Note Holder, and CBA Mezzanine
Capital Finance LLC, as the B Note Holder. The River Xxxx Apartments
Intercreditor Agreement relates to the River Xxxx Apartments AB Mortgage Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If neither S&P 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
Trustee, the Paying Agent, the Master Servicer and the Special Servicer and
specific ratings of S&P herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Saint Rita's Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Saint Rita's AB Mortgage Loan.
"Saint Rita's AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 90.
"Saint Rita's Intercreditor Agreement": That certain Intercreditor
Agreement Among Note Holders, dated as of August 25, 2006, by and between CIBC
Inc., as the A Note Holder, and CBA Mezzanine Capital Finance, LLC, as the B
Note Holder. The Saint Rita's Intercreditor Agreement relates to the Saint
Rita's Mortgage Loan.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.05(a).
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments) due in respect
of such Mortgage Loans during or, if and to the extent not previously received
or advanced pursuant to Section 4.03 in respect of a preceding Distribution
Date, prior to, the related Due Period, and all Assumed Scheduled Payments for
the related Due Period, in each case to the extent either (i) paid by the
Mortgagor as of the Determination Date (or, with respect to each Mortgage Loan
with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the Master Servicer as of the Business Day
preceding the related P&I Advance Date) (and not previously distributed to
Certificateholders) or (ii) advanced by the Master Servicer or the Trustee, as
applicable, pursuant to Section 4.03 in respect of such Distribution Date, and
(b) all Balloon Payments to the extent received on or prior to the related
Determination Date (or, with respect to each Mortgage Loan with a Due Date
occurring or a grace period ending after the related Determination Date, the
related Due Date or last day of such grace period, as applicable, to the extent
received by the Master Servicer as of the Business Day preceding the related P&I
Advance Date), and to the extent not included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": 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.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Master Servicer, the Special Servicer or
the Trustee, as applicable, in connection with the servicing and administering
of (a) a Mortgage Loan (and in the case of an AB Mortgage Loan, the related
Companion Loan and in the case of the Bank of America Plaza Mortgage Loan, the
Bank of America Plaza Companion Note) in respect of which a default, delinquency
or other unanticipated event has occurred or as to which a default is reasonably
foreseeable or (b) an REO Property, including (in the case of each of such
clause (a) and clause (b)), but not limited to, (x) the cost of (i) compliance
with the Master Servicer's obligations set forth in Section 3.03(c), (ii) the
preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of
the nature described in clauses (i)-(iv) of the definition of "Liquidation
Proceeds," (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures and (v) the operation, leasing,
management, maintenance and liquidation of any REO Property and (y) any amount
specifically designated herein to be paid as a "Servicing Advance".
Notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs and expenses or costs
and expenses incurred by any such party in connection with its purchase of a
Mortgage Loan or REO Property.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time and which as
of the Closing Date are listed on Exhibit X hereto.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the Master Servicer pursuant to the first
paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the Master Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan, (a) the Stated Principal Balance of such Mortgage Loan
as of the end of the immediately preceding Due Period and (b) the difference
between the Servicing Fee Rate for such Mortgage Loan over the servicing fee
rate (if any) applicable to such Mortgage Loan as specified in any Sub-Servicing
Agreement related to such Mortgage Loan. With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated Principal Balance of such Mortgage Loan as of the end of the immediately
preceding Due Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, a rate equal to the per annum rate set forth on the Mortgage Loan Schedule
under the heading "Servicing Fee Rate," in each case computed on the basis of
the Stated Principal Balance of the related Mortgage Loan. With respect to each
Companion Loan, the rate payable to the Master Servicer with respect to the
related Mortgage Loan to the extent not inconsistent with the related
Intercreditor Agreement.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on or before the Closing Date and the applicable reference to Servicing
File relates to any period after the Closing Date) delivered by the related
Mortgage Loan Seller to the Master Servicer: (i) a copy of any engineering
reports or property condition reports; (ii) other than with respect to a hotel
property (except with respect to tenanted commercial space within a hotel
property), copies of a rent roll and, for any office, retail, industrial or
warehouse property, a copy of all leases and estoppels and subordination and
non-disturbance agreements delivered to the Mortgage Loan Seller; (iii) copies
of related financial statements or operating statements; (iv) all legal opinions
(excluding attorney-client communications between any Mortgage Loan Seller and
its counsel that are privileged communications or constitute legal or other due
diligence analyses), Mortgagor's Certificates and certificates of hazard
insurance and/or hazard insurance policies or other applicable insurance
policies, if any, delivered in connection with the closing of the Mortgage Loan;
(v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the
documents that were delivered by or on behalf of the Mortgagor, which documents
were required to be delivered in connection with the closing of such Mortgage
Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased
to a single tenant, a copy of the lease; and (viii) a copy of all environmental
reports that were received by the applicable Mortgage Loan Seller relating to
the relevant Mortgaged Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer, the Trustee and the Paying Agent that is performing
activities that address the Servicing Criteria, unless such Person's activities
relate only to 5% or less of the Mortgage Loans.
"Servicing Officer": Any officer and/or employee of the Master
Servicer, the Special Servicer or any Additional Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans (and in
the case of an AB Mortgage Loan, the related Companion Loan and in the case of
the Bank of America Plaza Mortgage Loan, the Bank of America Plaza Companion
Note), whose name and specimen signature appear on a list of servicing officers
furnished by the Master Servicer, the Special Servicer or any Additional
Servicer to the Paying Agent, the Trustee and the Depositor on the Closing Date
as such list may be amended from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan or
Companion Loan, the occurrence of any of the following events:
(i) with respect to a Mortgage Loan or Companion Loan that is
not a Balloon Mortgage Loan, (a) a payment default shall have
occurred at its original Maturity Date, or (b) if the original
Maturity Date of such Mortgage Loan or Companion Loan has been
extended as provided herein, a payment default shall have occurred
at such extended Maturity Date; or
(ii) in the case of a Balloon Payment, such payment is
delinquent and the related Mortgagor has not provided the Master
Servicer on or prior to the related Maturity Date (or, with the
consent of the Directing Certifcateholder, the 60th day after the
related Maturity Date with respect to a Mortgage Loan where the
Mortgagor has continued to make its Assumed Scheduled Payments and
is diligently pursuing refinancing) with a bona fide written
commitment for refinancing, reasonably satisfactory in form and
substance to such Master Servicer, which provides that such
refinancing will occur within 120 days after the Maturity Date,
provided that if such refinancing does not occur within such 120 day
period, the related Mortgage Loan will become a Specially Serviced
Mortgage Loan at the end of such 120 day period (or at the end of
any shorter period beyond the date on which that Balloon Payment was
due within which the refinancing is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent (unless, in the case of each AB
Mortgage Loan or Mortgage Loan with mezzanine debt, prior to such
Monthly Payment becoming more than 60 days delinquent the holder of
the related Companion Loan or mezzanine debt cures such delinquency,
subject to the terms and provisions of the related Intercreditor
Agreement; or
(iv) the Master Servicer or the Special Servicer (in the case
of the Special Servicer, with the consent of the Directing
Certificateholder), as the case may be, makes a judgment that a
payment default is imminent and is not likely to be cured by the
related Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto and any such fees actually paid shall be reimbursed by the
Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the Master Servicer or the Special
Servicer, as applicable, has notice (other than a failure by such
Mortgagor to pay principal or interest) and which the Master
Servicer or Special Servicer (in the case of the Special Servicer,
with Directing Certificateholder consent) determines in its good
faith reasonable judgment may materially and adversely affect the
interests of the Certificateholders (or, with respect to the Bank of
America Plaza Mortgage Loan, the interests of the Bank of America
Plaza Companion Noteholder, or, with respect to each AB Mortgage
Loan, the interests of the related Companion Holder and the
Certificateholders, as a collective whole), if applicable, has
occurred and remained unremedied for the applicable grace period
specified in the related Mortgage Loan or Companion Loan documents,
other than the failure to maintain terrorism insurance if such
failure constitutes an Acceptable Insurance Default (or if no grace
period is specified for those defaults which are capable of cure, 60
days); or
(ix) the Master Servicer or the Special Servicer has received
notice of the foreclosure or proposed foreclosure of any lien other
than the Mortgage on the related Mortgaged Property; or
(x) the Master Servicer or Special Servicer (in the case of
the Special Servicer, with the consent of the Directing
Certificateholder) determines that (i) a default (other than as
described in clause (iv) above) under the Mortgage Loan or Companion
Loan is imminent, (ii) such default will materially impair the value
of the corresponding Mortgaged Property as security for the Mortgage
Loan and Companion Loan (if any) or otherwise materially adversely
affect the interests of Certificateholders (or, with respect to the
Bank of America Plaza Mortgage Loan, the interests of the Bank of
America Plaza Companion Noteholder, or, with respect to each AB
Mortgage Loan, the interests of the related Companion Holder and the
Certificateholders, as a collective whole), and (iii) the default
will continue unremedied for the applicable cure period under the
terms of the Mortgage Loan or Companion Loan or, if no cure period
is specified and the default is capable of being cured, for 30 days
(provided that such 30-day grace period does not apply to a default
that gives rise to immediate acceleration without application of a
grace period under the terms of the Mortgage Loan or Companion
Loan); provided that any determination that a Servicing Transfer
Event has occurred under this clause (x) with respect to any
Mortgage Loan or Companion Loan solely by reason of the failure (or
imminent failure) of the related Mortgagor to maintain or cause to
be maintained insurance coverage against damages or losses arising
from acts of terrorism may only be made by the Special Servicer
(with the consent of the Directing Certificateholder);
provided, if any Companion Loan becomes a Specially Serviced Mortgage Loan, the
related AB Mortgage Loan, shall also become a Specially Serviced Mortgage Loan.
If any AB Mortgage Loan becomes a Specially Serviced Mortgage Loan, the related
Companion Loan shall become a Specially Serviced Mortgage Loan. If the Bank of
America Plaza Companion Note becomes a Specially Serviced Mortgage Loan, the
Bank of America Plaza Mortgage Loan shall also become a Specially Serviced
Mortgage Loan. If the Bank of America Plaza Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Bank of America Plaza Companion Note shall become
Specially Serviced Mortgage Loans. If any Mortgage Loan in a Crossed Group
becomes a Specially Serviced Mortgage Loan, each other Mortgage Loan in such
Crossed Group shall also become a Specially Serviced Mortgage Loan.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P
and Class NR Certificates or, with respect to such Classes of Certificates an
assignment of the voting rights thereof; provided, however, that the Certificate
Balances of the Class A-1, Class A-3, Class A-4, Class A -1A, Class A-SB, Class
A-M, Class A-J, Class B, Class C and Class D Certificates and the Notional
Amount of the Class X Certificates have been retired.
"Special Servicer": LNR Partners, Inc., a Delaware corporation, and
its successors in interest and assigns, or any successor Special Servicer
appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan (including any REO
Loan) or Companion Loan (if provided for under the related Intercreditor
Agreement) in the same manner as interest is calculated on the Specially
Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced
by the Master Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date (or in the case of a
Qualified Substitute Mortgage Loan, the Due Date in the related
month of substitution); and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation or a
modification of such Mortgage Loan pursuant to the terms and
provisions of this Agreement that occurred prior to the end of the
Due Period for the most recent Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or an REO Loan that is a successor to a Mortgage
Loan shall be deemed to be part of the Trust Fund and to have an outstanding
Stated Principal Balance until the Distribution Date on which the payments or
other proceeds, if any, received in connection with a Liquidation Event in
respect thereof are to be (or, if no such payments or other proceeds are
received in connection with such Liquidation Event, would have been) distributed
to Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.
"Subordinate Certificate": Any Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P or Class NR Certificate.
"Sub-Servicer": Any Person that services Mortgage Loans on behalf of
the Master Servicer, the Special Servicer or an Additional Servicer and is
responsible for the performance (whether directly or through Sub-Servicers or
Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Master Servicer, the Special Servicer or an
Additional Servicer under this Agreement, with respect to some or all of the
Mortgage Loans, that are identified in Item 1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage
Loans, the Substitution Shortfall Amount shall be determined as provided in the
preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the related Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Surviving Entity": As defined in Section 6.02(b).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, together with
any and all other information, reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions of
federal tax law or Applicable State and Local Tax Law.
"The Patio Shops AB Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing The Patio Shops AB Mortgage Loan.
"The Patio Shops AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 95.
"The Patio Shops Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of September 1, 2006, by
and between JPMorgan Chase Bank, N.A., as the A Note Holder, and CBA Mezzanine
Capital Finance LLC, as the B Note Holder. The Patio Shops Intercreditor
Agreement relates to The Patio Shops AB Mortgage Loan.
"Towne Center at Xxxxxxxx Trail AB Companion Loan": That certain
loan evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Towne Center at Xxxxxxxx Trail AB
Mortgage Loan.
"Towne Center at Xxxxxxxx Trail AB Mortgage Loan": That certain
Mortgage Loan identified on the Mortgage Loan Schedule as Mortgage Loan No. 103.
"Towne Center at Xxxxxxxx Trail Intercreditor Agreement": That
certain Intercreditor Agreement Among Note Holders, dated as of October 25,
2006, by and between CIBC Inc., as the A Note Holder, and CBA Mezzanine Capital
Finance, LLC, as the B Note Holder. The Towne Center at Xxxxxxxx Trail
Intercreditor Agreement relates to the Towne Center at Xxxxxxxx Trail AB
Mortgage Loan.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
The Trust shall be named: "X.X. Xxxxxx Chase Commercial Mortgage Securities
Trust 2006-CIBC17".
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto (subject to, in the case of the Bank of America Plaza Whole Loan, the
interests of the Bank of America Plaza Companion Noteholder in the related
Mortgage File); (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date (or with respect to a
Qualified Substitute Mortgage Loan, the Due Date in the month of substitution);
(iii) any REO Property (to the extent of the Trust Fund's interest therein);
(iv) all revenues received in respect of any REO Property (to the extent of the
Trust Fund's interest therein); (v) the Master Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to this Agreement and any
proceeds thereof (to the extent of the Trust Fund's interest therein); (vi) any
Assignments of Leases and any security agreements (to the extent of the Trust
Fund's interest therein); (vii) any letters of credit, indemnities, guaranties
or lease enhancement policies given as additional security for any Mortgage
Loans (to the extent of the Trust Fund's interest therein); (viii) all assets
deposited in the Servicing Accounts (to the extent of the Trust Fund's interest
therein), amounts on deposit in the Certificate Account, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Interest Reserve
Account, the Gain-on-Sale Reserve Account (to the extent of the Trust Fund's
interest in such Gain-on-Sale Reserve Account) and any REO Account (to the
extent of the Trust Fund's interest in such REO Account), including any
reinvestment income, as applicable; (ix) any Environmental Indemnity Agreements
(to the extent of the Trust Fund's interest therein); (x) the rights and
remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the
extent transferred to the Trustee); (xi) the Uncertificated Lower-Tier
Interests; and (xii) the proceeds of the foregoing (other than any interest
earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and any Reserve Accounts, to the extent such interest belongs to the
related Mortgagor).
"Trustee": LaSalle Bank National Association, a national banking
association, in its capacity as trustee and its successors in interest, or any
successor Trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent fee. No portion of the Trustee Fee shall be calculated by reference
to any Companion Loan or the principal balance of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.0008% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
fee rate.
"Trustee's Direction": As defined in Section 7.01(a).
"Trust-Related Litigation": As defined in Section 3.32(a).
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class XX-0, Xxxxx
XX-0X, Xxxxx XX-0, Class LA-4, Class LA-SB, 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 LP and Class LNR Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., CIBC World Markets
Corp., Banc of America Securities LLC and Xxxxxx Xxxxxxx & Co. Incorporated.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the Determination
Date and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to such Mortgage Loans and any REO Loans on or prior to
the related Determination Date, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17, Upper-Tier Distribution Account."
Any such account or accounts shall be an Eligible Account (or a subaccount of
the Distribution Account).
"Upper-Tier REMIC": One of the 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.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates and (ii) in the case of any other Class of Regular Certificates
(other than the Class X certificates) a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates (other than the Class
X Certificates), each determined as of the Distribution Date immediately
preceding such time. None of the Class R Certificates and the Class LR
Certificates will be entitled to any Voting Rights. Voting Rights allocated to a
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) 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 (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. 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 in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": With respect to each Corrected Mortgage Loan, a
fee of 1.00% of each collection (other than Penalty Charges) of interest and
principal (other than any amount for which a Liquidation Fee would be paid),
including (i) Monthly Payments, (ii) Balloon Payments and (iii) payments (other
than those included in clause (i) or (ii) of this definition) at maturity,
received on each Corrected Mortgage Loan for so long as it remains a Corrected
Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Master Servicer, the Special
Servicer, the Paying Agent or the Trustee; provided, however, that for
purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on
the date they are applied in accordance with the Servicing Standards
consistent with the terms of the related Mortgage Note and Mortgage to
reduce the outstanding principal balance of such Mortgage Loan on which
interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates (other than the Class X and Residual Certificates) on or as
of a Distribution Date shall refer to the Certificate Balance of such
Class of Certificates (other than the Class X and Residual Certificates)
on such Distribution Date after giving effect to (a) any distributions
made on such Distribution Date pursuant to Section 4.01(a), (b) any
Collateral Support Deficit allocated to such Class of Certificates (other
than the Class X and Residual Certificates) on the immediately preceding
Distribution Date pursuant to Section 4.04, (c) the addition of any
Certificate Deferred Interest allocated to such Class of Certificates
(other than the Class X and Residual Certificates) and added to such
Certificate Balance pursuant to Section 4.06(b) and (d) any recoveries on
the related Mortgage Loan of Nonrecoverable Advances (plus interest
thereon) that were previously reimbursed from principal collections on the
Mortgage Loans that resulted in a reduction of the Principal Distribution
Amount, Loan Group 1 Principal Distribution Amount or Loan Group 2
Principal Distribution Amount, which recoveries are allocated to such
Class of Certificates and added to the Certificate Balance pursuant to
Section 4.04 (a).
(iv) [Reserved].
Section 1.03 Certain Matters Related to the Bank of America
Companion Note.
Notwithstanding any provision of this Agreement to the contrary, in
connection with the Bank of America Plaza Companion Note, (i) neither the Master
Servicer nor the Special Servicer shall be required to comply with provisions
under this Agreement, the Bank of America Plaza Intercreditor Agreement or any
other document under such Other Securitization that otherwise require them to
deliver notice to, or obtain consent, approval or Rating Agency confirmation
from any Person (such as, but not limited to, a rating agency for such Other
Securitization), or to take account of any matters related to the Bank of
America Plaza Companion Noteholder or Other Securitization (such as, but not
limited to, the existence of amounts reimbursable to the Bank of America Plaza
Companion Noteholder, the existence of the Bank of America Plaza Companion Loan
Securities and the amount of any P&I Advance and/or advance interest amounts
thereon) by the Bank of America Plaza Companion Noteholder, unless (a) the Bank
of America Plaza Companion Noteolder has delivered specific notice of the
identity of the relevant Person (which notice shall be deemed to have been given
if such notice information is included in or delivered pursuant to the Bank of
America Plaza Intercreditor Agreement), (b) specific notice of the relevant
matter has been delivered to the Master Servicer or the Special Servicer, as the
case may be or (c) a Servicing Officer of the Master Servicer, has actual
knowledge of such matter; and (ii) no such notice shall have any force or effect
to the extent that it purports to require, or has the effect of requiring, any
party to this Agreement to review or be familiar with the terms of the Other
Pooling and Servicing Agreement other than the identity of the parties thereto
and the notice addresses set forth therein.
Notwithstanding the foregoing, the Master Servicer and Special
Servicer agree for the benefit of the Bank of America Plaza Companion
Noteholders that, in the event that the Bank of America Plaza Companion Note
shall be held by such Other Securitization, and the Master Servicer or Special
Servicer, as applicable, shall have received notice that the Bank of America
Plaza Companion Note is held by such Other Securitization (a "Subsequent
Securitization Notice"), and any provision of this Agreement requires the Master
Servicer or Special Servicer to obtain consent, approval or Rating Agency
confirmation from a Rating Agency rating such Other Securitization, a holder of
Bank of America Plaza Companion Loan Securities issued in such Other
Securitization or the Bank of America Plaza Companion Noteholder that had the
same initial owner as the Bank of America Plaza Companion Noteholder (in either
case, a "Consent Party"), and such Consent Party shall not have been identified
to the Master Servicer or Special Servicer, the Master Servicer or Special
Servicer, as applicable, shall not be required to comply with such provision of
this Agreement so requiring the Master Servicer or Special Servicer to obtain
consent, approval or Rating Agency confirmation from such Consent Party unless
the servicer of such Other Securitization (or other appropriate party identified
in the Subsequent Securitization Notice) shall have delivered notice to the
Master Servicer or Special Servicer, as applicable, of the identity of the
Consent Party.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests) 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 Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2,
3, 4, 5, 6(a) (excluding clause (viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f),
6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan Purchase
Agreements, (iii) the Intercreditor Agreements, and (iv) all other assets
included or to be included in the Trust Fund. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans (other than (i) payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal
collected on or before the Cut-off Date; and (iii) with respect to those
Mortgage Loans that were closed in November 2006 but have their first Due Date
in January 2007, any interest amounts relating to the period prior to the
Cut-off Date). The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 12.07, is
intended by the parties to constitute a sale. In connection with the assignment
to the Trustee of Sections 1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of
Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19
of each of the Mortgage Loan Purchase Agreements, it is intended that the
Trustee get the benefit of Sections 10, 11 and 14 thereof in connection with any
exercise of rights under the assigned Sections, and the Depositor shall use its
best efforts to make available to the Trustee the benefits of Sections 10, 11
and 14 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Master Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied; provided, such Mortgage Loan Seller shall deliver
a copy or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and indemnifying
the Trustee. If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of filing or recording thereon (if intended to be
recorded or filed), solely because of a delay caused by the public filing or
recording office where such document or instrument has been delivered for filing
or recordation, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied on a provisional basis as of the Closing Date as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, if a duplicate original or a
photocopy of such non-delivered document or instrument (certified by the
applicable public filing or recording office, the applicable title insurance
company or the applicable Mortgage Loan Seller to be a true and complete copy of
the original thereof submitted for filing or recording) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office, in the case of
the documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the applicable Mortgage Loan Seller is, as certified in writing to
the Trustee no less often than every 90 days, attempting in good faith to obtain
from the appropriate public filing office or county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon, for
any other reason, including, without limitation, that such non-delivered
document or instrument has been lost or destroyed, the delivery requirements of
the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, if a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing or recording, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v) (to the
extent not already assigned pursuant to clause (iii)), (vii) (to the extent not
already assigned pursuant to clause (iii)) or (xi) of the definition of
"Mortgage File" solely because of the unavailability of filing or recording
information as to any existing document or instrument and/or because such
assignments are assignments in blank and have not been completed in favor of the
Trustee as specified in the related clause(s) of the definition of "Mortgage
File," such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H;
provided that all required original assignments with respect to such Mortgage
Loan, in fully complete and recordable form (or form suitable for filing or
recording, if applicable), are delivered to the Trustee or its Custodian within
180 days after the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its discretion may consent to, which consent shall not
be unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the Master Servicer and the Master Servicer shall hold the
original (or copy, if such original has been submitted by the applicable
Mortgage Loan Seller to the issuing bank to effect an assignment or amendment of
such letter of credit (changing the beneficiary thereof to the Trust (in care of
the Master Servicer) that may be required in order for the Master Servicer to
draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents) and the
applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to
the Trustee together with an officer's certificate of the applicable Mortgage
Loan Seller certifying that such document has been delivered to the Master
Servicer or an officer's certificate from the Master Servicer certifying that it
holds the letter(s) of credit pursuant to this Section 2.01(b), one of which
shall be delivered to the Trustee on the Closing Date. If a letter of credit
referred to in the previous sentence is not in a form that would allow the
Master Servicer to draw on such letter of credit on behalf of the Trust in
accordance with the applicable terms thereof and/or of the related Mortgage Loan
documents, the applicable Mortgage Loan Seller shall deliver the appropriate
assignment or amendment documents (or copies of such assignment or amendment
documents if the related Mortgage Loan Seller has submitted the originals to the
related issuer of such letter of credit for processing) to the Master Servicer
within 30 days of the Closing Date. If not otherwise paid by the related
Mortgagor, the applicable Mortgage Loan Seller shall pay any costs of assignment
or amendment of such letter(s) of credit required in order for the Master
Servicer to draw on such letter(s) of credit on behalf of the Trust and shall
cooperate with the reasonable requests of the Master Servicer or the Special
Servicer, as applicable, in connection with effectuating a draw under any such
letter of credit prior to the date such letter of credit is assigned or amended
in order that it may be drawn by the Master Servicer on behalf of the Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each Assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
("Assignments" and, individually, "Assignment") relating to the Mortgage Loans
conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper
form for filing or recording, as applicable, and to submit such Assignments for
filing or recording, as the case may be, in the applicable public filing or
recording office, and on the Closing Date, such Mortgage Loan Seller may deliver
one (1) omnibus assignment for all such Mortgage Loans to the Trustee or its
Custodian as provided in Section 2.01(b). Except under the circumstances
provided for in the last sentence of this subsection (c), the related Mortgage
Loan Seller will itself, or a third party at such Mortgage Loan Seller's expense
will, promptly (and in any event within 120 days after the later of the Closing
Date and the Trustee's actual receipt of the related documents and the necessary
recording and filing information) cause to be submitted for recording or filing,
as the case may be, in the appropriate public office for real property records
or UCC Financing Statements, as appropriate, each assignment to the Trustee
referred to in clauses (iii) and (v) of the definition of "Mortgage File" and
each UCC assignment to the Trustee referred to in clause (xi) of the definition
of "Mortgage File." Each such Assignment submitted for recording shall reflect
that it should be returned by the public recording office to the Trustee or its
designee following recording (or to the agent of the Mortgage Loan Seller who
will then be responsible for delivery of the same to the Trustee or its
designee), and each such UCC assignment submitted for recording or filing shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following recording or filing (or to the agent of the Mortgage Loan
Seller who will then be responsible for delivery of the same to the Trustee or
its designee). If any such document or instrument is determined to be incomplete
or not to meet the recording or filing requirements of the jurisdiction in which
it is to be recorded or filed, or is lost by the public office or returned
unrecorded or unfiled, as the case may be, because of a defect therein, on or
about 180 days after the Closing Date, the related Mortgage Loan Seller or its
designee shall prepare, at its own expense, a substitute therefor or cure such
defect, as the case may be, and thereafter the Mortgage Loan Seller or its
designee shall, at the expense of the related Mortgage Loan Seller, upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. If, by the
first anniversary of the Closing Date, the Trustee has not received confirmation
of the recording or filing as the case may be, of any such Assignment, it shall
so advise the related Mortgage Loan Seller who may then pursue such confirmation
itself or request that the Trustee pursue such confirmation at the related
Mortgage Loan Seller's expense, and upon such a request and provision for
payment of such expenses satisfactory to the Trustee, the Trustee, at the
expense of the applicable Mortgage Loan Seller, shall cause a search of the land
records of each applicable jurisdiction and of the records of the offices of the
applicable Secretary of State for confirmation that the Assignment appears in
such records and retain a copy of such confirmation in the related Mortgage
File. In the event that confirmation of the recording or filing of an Assignment
cannot be obtained, the Trustee or the related Mortgage Loan Seller, as
applicable, shall promptly inform the other and the Trustee shall provide such
Mortgage Loan Seller with a copy of the Assignment and request the preparation
of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for
the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File," or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File," in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications (including such communications
between the Mortgage Loan Seller and its Affiliates) and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications that are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the Master Servicer within 5 Business Days after the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders (and as holder of the Uncertificated
Lower-Tier Interests) and, if applicable, on behalf of the related Companion
Holder. Such documents and records shall be any documents and records (with the
exception of any items excluded under the immediately preceding sentence) that
would otherwise be a part of the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, as in full force and effect, without
amendment or modification, on the Closing Date.
(f) The Depositor shall use its best 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 Mortgage Loans
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name to be transferred
to the Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
(g) 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 initial Distribution Date. The Closing
Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clause (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by Section 2.01(b) hereof) and (xxiii) of
the definition of "Mortgage File" with respect to each Mortgage Loan, of a fully
executed original counterpart of each of the Mortgage Loan Purchase Agreements,
and of all other assets included in the Trust Fund and (2) declares (a) that it
or a Custodian on its behalf holds and will hold such documents and the other
documents delivered or caused to be delivered by the Mortgage Loan Sellers that
constitute the Mortgage Files, and (b) 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 and, with respect to any original
document in the Mortgage File for each Loan Pair, for any present or future
Companion Holder (and for the benefit of the Trustee as holder of the
Uncertificated Lower-Tier Interests), as applicable. If any Mortgage Loan Seller
is unable to deliver or cause the delivery of any original Mortgage Note, such
Mortgage Loan Seller may deliver a copy of such Mortgage Note, together with a
signed lost note affidavit and appropriate indemnity and shall thereby be deemed
to have satisfied the document delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit T, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicer, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full) and except as specifically identified in any
exception report annexed to such writing (the "Trustee Exception Report"), (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to last sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
With respect to each Mortgage Loan listed on the Trustee Exception Report, the
Trustee shall specifically identify such Mortgage Loan together with the nature
of such exception (in the form reasonably acceptable to the Trustee and the
related Mortgage Loan Seller and separating items required to be in the Mortgage
File but never delivered from items which were delivered by the related Mortgage
Loan Seller but are out for filing or recording and have not been returned by
the filing office or the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit V, certify in writing to each of the Depositor, the
Master Servicer, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the third to last sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File," resulting solely from a delay in the return
of the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
thirty (30) days following a Servicing Transfer Event, and (ii) impairs or
prohibits in any material way the Master Servicer's or Special Servicer's
ability to act upon, or enforce, any of the Trust Fund's rights and remedies
under the related Mortgage Loan, or Specially Serviced Mortgage Loan, as
applicable, at the time the Master Servicer or Special Servicer attempts to act
upon, or enforce, any such right or remedy, the Directing Certificateholder, in
its sole judgment, may permit the related Mortgage Loan Seller, in lieu of
repurchasing or substituting for the related Mortgage Loan, to deposit with the
Trustee an amount, to be held in trust in a segregated Eligible Account, equal
to 25% of the Stated Principal Balance of the related Mortgage Loan (in the
alternative, the related Mortgage Loan Seller may deliver to the Trustee a
letter of credit in such amount). Such funds or letter of credit, as applicable,
shall be held by the Trustee (i) until the date on which the Master Servicer
certifies to the Trustee that such document deficiency has been cured or the
related Mortgage Loan is no longer part of the Trust Fund, at which time the
Trustee shall return such funds (or letter of credit) to the related Mortgage
Loan Seller, or (ii) until same are applied to the Purchase Price (or the
Substitution Shortfall Amount, if applicable) as set forth below in this Section
2.02(d) in the event of a repurchase or substitution by the related Mortgage
Loan Seller. If the related Mortgage Loan is or becomes a Specially Serviced
Mortgage Loan and the Special Servicer certifies to the Trustee that it has
determined in the exercise of its reasonable judgment that the document with
respect to which such document deficiency exists is required in connection with
an imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any Mortgagor or third party with
respect to the related Mortgage Loan, establishing the validity or priority of
any lien on collateral securing the Mortgage Loan or for any immediate
significant servicing obligation, the related Mortgage Loan Seller shall be
required to repurchase or substitute for the related Mortgage Loan in accordance
with the terms and conditions of Section 2.03(b) or Section 6 of the related
Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan
Seller shall not be required to repurchase the Mortgage Loan for a period of
ninety (90) days after receipt of a notice to repurchase (together with any
applicable extension period) if it is attempting to recover the document from
the applicable filing or recording office and provides an officer's certificate
setting forth what actions such Mortgage Loan Seller is pursuing in connection
with such recovery. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, or cause the Master Servicer to deposit, such
funds, or shall draw upon the letter of credit and deposit the proceeds of such
draw, into the Certificate Account to be applied to the Purchase Price (or the
Substitution Shortfall Amount, if applicable, in which event, the amount of such
funds or proceeds that exceed the Substitution Shortfall Amount shall be
returned to the Mortgage Loan Seller) in accordance with Section 2.03(b). All
such funds deposited with the Trustee shall be invested in Permitted
Investments, at the direction and for the benefit of the related Mortgage Loan
Seller. Such funds shall be treated as an "outside reserve fund" under the REMIC
Provisions, which, together with any reimbursement from the Lower-Tier REMIC, is
beneficially owned by the related Mortgage Loan Seller for federal income tax
purposes, which Mortgage Loan Seller shall remain liable for any taxes payable
on income or gain with respect thereto.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (x) and (xii) through (xxii)
of the definition of "Mortgage File" exist or are required to be delivered by
the Depositor, the Mortgage Loan Sellers or any other Person (unless identified
on the Mortgage Loan Checklist) 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 genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation, whether all endorsements or riders issued are included in the file
or if the policy has not been issued whether any acceptable replacement document
has been dated the date of the related Mortgage Loan funding. Further, with
respect to the UCC financing statements referenced in the Mortgage File, absent
actual knowledge to the contrary or copies of UCC financing statements delivered
to the Trustee as part of the Mortgage File indicating otherwise, the Trustee
may assume, for the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor, except to the extent multiple Mortgagors are named as
debtors in the same UCC financing statement filing), or if the Trustee has
received notice that a particular UCC financing statement was filed as a fixture
filing, that the related Mortgage File should include only a local UCC financing
statement filing for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more Mortgagors, for each Mortgagor, except to the extent
multiple Mortgagors are named as debtors in the same UCC financing statement
filing). The assignments of the UCC financing statements to be assigned to the
Trust will be delivered on the new national forms (or on such other form as may
be acceptable for filing or recording in the applicable jurisdiction) and in a
format suitable for filing or recording, as applicable, and will be filed or
recorded in the jurisdiction(s) where such UCC financing statements were
originally filed or recorded, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the Master Servicer, the Special
Servicer, the Directing Certificateholder and the applicable Mortgage Loan
Seller (and in no event later than 90 days after the Closing Date and every
calendar quarter thereafter, commencing with the quarter ending December 31,
2006 until September 30, 2008, by providing a written report (the "Trustee
Exception Report") setting forth for each affected Mortgage Loan, with
particularity, the nature of such Defect (in a form reasonably acceptable to the
Trustee and such Mortgage Loan Seller and separating items required to be in the
Mortgage File but never delivered from items which were delivered by such
Mortgage Loan Seller but are out for recording or filing and have not been
returned by the recorder's office or filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Master Servicer, the Special
Servicer, the Paying Agent or the Trustee discovers (without implying any duty
of such person to make, or to attempt to make, such a discovery) or receives
notice of a Defect in any Mortgage File or a breach of any representation or
warranty with respect to a Mortgage Loan set forth in, or required to be made
with respect to, a Mortgage Loan by the applicable Mortgage Loan Seller pursuant
to the related Mortgage Loan Purchase Agreement (a "Breach"), which Defect or
Breach, as the case may be, materially and adversely affects the value of such
Mortgage Loan, the value of the related Mortgaged Property or the interests of
the Trustee or any Certificateholder therein, such Certificateholder, the Master
Servicer, the Special Servicer, the Trustee, the Paying Agent or the Directing
Certificateholder, as applicable, shall give prompt written notice of such
Defect or Breach, as the case may be, to the Depositor, the Master Servicer, the
Special Servicer, the applicable Mortgage Loan Seller, the Trustee, the Paying
Agent and the Directing Certificateholder and shall request in writing that the
applicable Mortgage Loan Seller, not later than 90 days after the earlier of (i)
the applicable Mortgage Loan Seller's receipt of such notice or (ii) in the case
of a Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, but without
regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a
defective mortgage loan to be treated as a qualified mortgage, the applicable
Mortgage Loan Seller's discovery of such Defect or Breach (the "Initial Cure
Period") that materially and adversely affects the value of any Mortgage Loan,
the value of the related Mortgaged Property or the interests of the Trustee or
any Certificateholder therein, (i) cure such Defect or Breach, as the case may
be, in all material respects, (ii) repurchase the affected Mortgage Loan or REO
Loan at the applicable Purchase Price and in conformity with the applicable
Mortgage Loan Purchase Agreement and this Agreement or (iii) substitute a
Qualified Substitute Mortgage Loan (other than with respect to the Bank of
America Plaza Mortgage Loan, for which no substitution will be permitted) for
such affected Mortgage Loan or REO Loan (provided that in no event shall any
such substitution occur on or after the second anniversary of the Closing Date)
and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount in connection therewith and in conformity with the
applicable Mortgage Loan Purchase Agreement and this Agreement; provided,
however, that if such Breach or Defect is capable of being cured but is not
cured within the Initial Cure Period, and the applicable Mortgage Loan Seller
has commenced and is diligently proceeding with the cure of such Breach or
Defect within the Initial Cure Period, the applicable Mortgage Loan Seller shall
have an additional 90 days commencing immediately upon the expiration of the
Initial Cure Period (such additional 90 day period, the "Extended Cure Period")
to complete such cure (or, failing such cure, to repurchase the related Mortgage
Loan or REO Loan or substitute a Qualified Substitute Mortgage Loan) (other than
with respect to the Bank of America Plaza Mortgage Loan, for which no
substitution will be permitted)) and provided, further, that with respect to
such Extended Cure Period the applicable Mortgage Loan Seller shall have
delivered an officer's certificate to the Trustee (who shall promptly deliver a
copy of such officer's certificate to the Rating Agencies, the Master Servicer,
the Special Servicer and the Directing Certificateholder), setting forth the
reason such Breach or Defect is not capable of being cured within the Initial
Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the applicable Mortgage Loan
Seller anticipates that such Breach or Defect will be cured within the Extended
Cure Period. Notwithstanding the foregoing, any Defect or Breach which causes
any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) that causes a defective mortgage loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interests of Certificateholders therein, and such Mortgage Loan shall
be repurchased or substituted for without regard to the Extended Cure Period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer in the
Certificate Account. If any Breach pertains to a representation or warranty that
the related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then the
related Mortgage Loan Seller shall cure such Breach within the applicable cure
period (as the same may be extended) by reimbursing the Trust Fund (by wire
transfer of immediately available funds) the reasonable amount of any such costs
and expenses incurred by the Master Servicer, the Special Servicer, the Paying
Agent, the Trustee or the Trust Fund that are the basis of such Breach and have
not been reimbursed by the related Mortgagor; provided, however, that in the
event any such costs and expenses exceed $10,000, the related Mortgage Loan
Seller shall have the option to either repurchase or substitute for the related
Mortgage Loan as provided above 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 remittance, the related Mortgage Loan Seller shall be deemed to
have cured such Breach in all respects. To the extent any fees or expenses that
are the subject of a cure by the related Mortgage Loan Seller are subsequently
obtained from the related Mortgagor, the portion of the cure payment made by the
related Mortgage Loan Seller equal to such fees or expenses obtained from the
Mortgagor shall be returned to the related Mortgage Loan Seller pursuant to
Section 2.03(f) below. Monthly Payments due with respect to each Qualified
Substitute Mortgage Loan (if any) after the related Due Date in the month of
substitution, and Monthly Payments due with respect to each Mortgage Loan being
repurchased or replaced after the related Cut-off Date and received by the
Master Servicer or the Special Servicer on behalf of the Trust on or prior to
the related date of repurchase or substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) on or prior to the related Due Date in the month of substitution, and
Monthly Payments due with respect to each Mortgage Loan being repurchased or
replaced and received by the Master Servicer or the Special Servicer on behalf
of the Trust after the related date of repurchase or substitution, shall not be
part of the Trust Fund and are to be remitted by the Master Servicer to the
Mortgage Loan Seller effecting the related repurchase or substitution promptly
following receipt. Notwithstanding anything contained in this Agreement or the
related Mortgage Loan Purchase Agreement, no delay in either the discovery of a
Defect or Breach or delay on the part of any party to this Agreement in
providing notice of such Defect or Breach shall relieve the Mortgage Loan Seller
of its obligation to repurchase if it is otherwise required to do so under the
related Mortgage Loan Purchase Agreement and/or this Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of Mortgage File; (d) the absence from the
Mortgage File of any intervening assignments required to create a complete chain
of assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of each such missing intervening assignment
and a certificate stating that the original intervening assignments were sent
for filing or recordation, as applicable; (e) the absence from the Mortgage File
of any required letter of credit; or (f) with respect to any leasehold mortgage
loan, the absence from the related Mortgage File of a copy (or an original, if
available) of the related Ground Lease; provided, however, that no Defect
(except the Defects previously described clauses (a) through (f)) shall be
considered to materially and adversely affect the value of the related Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or Certificateholders unless the document with respect to which the
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or a binding commitment to issue a lender's title insurance policy,
as provided in clause (ix) of the definition of Mortgage File herein, in lieu of
the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Master Servicer and the Special Servicer shall
each tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a trust receipt
executed by the applicable Mortgage Loan Seller evidencing such repurchase or
substitution, all portions of the Mortgage File and other documents pertaining
to such Mortgage Loan possessed by each of the Trustee, the Master Servicer and
the Special Servicer, and each document that constitutes a part of the Mortgage
File that was endorsed or assigned to the Trustee shall be endorsed or assigned,
as the case may be, to the applicable Mortgage Loan Seller in the same manner as
provided in Section 6 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of any
of the Mortgage Loan Purchase Agreements.
(e) The Special Servicer (in the case of Specially Serviced Mortgage
Loans) shall, and the Special Servicer (in the case of Non-Specially Serviced
Mortgage Loans) shall at the direction of the Directing Certificateholder, for
the benefit of the Certificateholders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests), enforce the obligations of the applicable
Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims, if
any, shall be carried out in such form, to such extent and at such time as the
Special Servicer would require were it, in its individual capacity, the owner of
the affected Mortgage Loan(s). Any costs incurred by the Special Servicer with
respect to the enforcement of the obligations of the applicable Mortgage Loan
Seller under the applicable Mortgage Loan Purchase Agreement shall be deemed to
be Servicing Advances to the extent not otherwise provided herein (including,
without limitation, pursuant to the immediately following sentence). The Special
Servicer shall be reimbursed for the reasonable costs of such enforcement:
first, from a specific recovery, if any, of costs, expenses or attorneys' fees
against the applicable Mortgage Loan Seller; second, pursuant to Section
3.05(a)(vii) herein out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then pursuant to Section 3.05(a)(viii) herein
out of general collections on the Mortgage Loans on deposit in the Certificate
Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Paying Agent, the Trust Fund, the Master Servicer and
the Special Servicer to recover amounts owed by the related Mortgagor under the
terms of such Mortgage Loan, including, without limitation, the rights to
recover unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the
Paying Agent, the Trust Fund, the Master Servicer or the Special Servicer
allocable to such Mortgage Loan. The Master Servicer or, with respect to a
Specially Serviced Mortgage Loan, the Special Servicer, shall use reasonable
efforts to recover such expenses for such Mortgage Loan Seller to the extent
consistent with the Servicing Standards, but taking into account the subordinate
nature of the reimbursement to the Mortgage Loan Seller; provided, however, that
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 Standards that such actions by it will not impair the Master
Servicer's and/or the Special Servicer's collection or recovery of principal,
interest and other sums due with respect to the related Mortgage Loan which
would otherwise be payable to the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificateholders pursuant to the terms of
this Agreement; provided, further, that the Master Servicer or, with respect to
a Specially Serviced Mortgage Loan, the Special Servicer, may waive the
collection of amounts due on behalf of the Mortgage Loan Seller in its sole
discretion in accordance with the Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller will be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution
and repurchase of Mortgage Loans set forth herein. In the event that the
remaining Crossed Loans in such Crossed Group satisfy the aforementioned
criteria, the applicable Mortgage Loan Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Breach or
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. Any reserve or other cash collateral or letters of credit
securing the Crossed Loans shall be allocated between such Mortgage Loans in
accordance with the related Mortgage Loan documents or otherwise on a pro rata
basis based upon their outstanding Stated Principal Balances. Except as provided
in Section 2.03(h), all other terms of the Mortgage Loans shall remain in full
force and effect without any modification thereof.
(h) Notwithstanding the foregoing, if the related Mortgage provides
for the partial release of one or more of the Crossed Loans, the Depositor may
cause the related Mortgage Loan Seller to repurchase only that Mortgage Loan
required to be repurchased pursuant to this Section 2.03, pursuant to the
partial release provisions of the related Mortgage; provided, however, that (i)
the remaining Mortgage Loan(s) fully comply with the terms and conditions of the
related Mortgage, this Agreement and the related Mortgage Loan Purchase
Agreement, including the Crossed Loan Repurchase Criteria, (ii) in connection
with such partial release, the related Mortgage Loan Seller obtains an Opinion
of Counsel (at such Mortgage Loan Seller's expense) to the effect that the
contemplated action will not, with respect to the Upper Tier REMIC or the Lower
Tier REMIC created hereunder, endanger such status or result in the imposition
of any tax and (iii) in connection with such partial release, the related
Mortgage Loan Seller delivers or causes to be delivered to the Custodian
original modifications to the Mortgage prepared and executed in connection with
such partial release.
(i) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans, receipt of which is hereby acknowledged, the Trustee (i)
acknowledges the issuance of the Uncertificated Lower-Tier Interests by the
Paying Agent to the Depositor, (ii) acknowledges the authentication and delivery
of the Class LR Certificates by the Paying Agent to or upon the order of the
Depositor, (iii) acknowledges the contribution by the Depositor of the
Uncertificated Lower-Tier Interests to the Upper-Tier REMIC and (iv) immediately
thereafter, the Trustee acknowledges that it has caused the Certificate
Registrar to execute and caused the Authenticating Agent to authenticate and to
deliver to or upon the order of the Depositor, in exchange for the
Uncertificated Lower-Tier Interests, the Regular Certificates and the Class R
Certificates, and the Depositor hereby acknowledges the receipt by it or its
designees, of such Certificates in authorized Denominations evidencing the
entire beneficial ownership of the Upper-Tier REMIC.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
Each of the Master Servicer and the Special Servicer shall diligently service
and administer the Mortgage Loans and the Companion Loans it is obligated to
service pursuant to this Agreement on behalf of the Trust and in the best
interests of and for the benefit of the Certificateholders and, in the case of
the Companion Loans, the related Companion Holders and the Trustee (as holder of
the Uncertificated Lower-Tier Interests), as a collective whole, taking into
account the subordinate or pari passu nature of the Companion Loans, as the case
may be (as determined by the Master Servicer or the Special Servicer, as the
case may be, in its reasonable judgment), in accordance with applicable law, the
terms of this Agreement and, with respect to each Loan Pair, the related
Intercreditor Agreement and the terms of the respective Mortgage Loans and, if
applicable, the related Companion Loan, taking into account the subordinate or
pari passu nature of the Companion Loan, as the case may be. With respect to
each Loan Pair, in the event of a conflict between this Agreement and the
related Intercreditor Agreement, the related Intercreditor Agreement shall
control; provided, in no event shall the Master Servicer or the Special Servicer
take any action in accordance with the terms of any Intercreditor Agreement that
would cause the Master Servicer or the Special Servicer, as the case may be, to
violate the Servicing Standards. Pursuant to the terms of each Mezz Cap AB
Mortgage Loan Intercreditor Agreement, it is contemplated that the Mortgagor
under the Mezz Cap AB Mortgage Loans and the related Companion Loan will remit
payments on the related Mezz Cap AB Mortgage Loans to the Master Servicer
hereunder, and for the Companion Loan, the related Mortgagor will remit payments
on the related Companion Loan directly to the servicer for such Companion Loan
(including a securitization servicer); provided, however, that prior to the
securitization of the Companion Loan and under certain other circumstances
identified in each Mezz Cap AB Mortgage Loan Intercreditor Agreement, the
Mortgagor under the Companion Loan (even after the Companion Loan has been
securitized) will be required to remit payments on such Companion Loan directly
to the Master Servicer under this Agreement. To the extent consistent with the
foregoing, the Master Servicer and the Special Servicer shall service the
Mortgage Loans in accordance with the higher of the following standards of care:
(1) in the same manner in which, and with the same care, skill, prudence and
diligence with which the Master Servicer or the Special Servicer, as the case
may be, services and administers similar mortgage loans for other third party
portfolios and (2) the same care, skill, prudence and diligence with which the
Master Servicer or the Special Servicer, as the case may be, services and
administers similar mortgage loans owned by the Master Servicer or the Special
Servicer, as the case may be, with a view to the maximization of timely recovery
of principal and interest on a net present value basis on the Mortgage Loans or
the Specially Serviced Mortgage Loans, as applicable, and the best interests of
the Trust and the Certificateholders (and in the case of an AB Mortgage Loan,
the related Companion Holder, and, in the case of the Bank of America Plaza
Mortgage Loan, the Bank of America Plaza Companion Noteholder, taking into
account the subordinate or pari passu nature of the subject Companion Loan), as
determined by the Master Servicer or the Special Servicer, as the case may be,
in its reasonable judgment, in either case giving due consideration to the
customary and usual standards of practice of prudent institutional, multifamily
and commercial mortgage loan servicers, but without regard to: (i) any
relationship that the Master Servicer, the Special Servicer or any Affiliate of
the Master Servicer or the Special Servicer may have with any Mortgagor or any
Affiliate of such Mortgagor, any Mortgage Loan Seller or any other parties to
this Agreement; (ii) the ownership of any Certificate or Companion Loan by the
Master Servicer, the Special Servicer or any Affiliate of the Master Servicer or
Special Servicer, as applicable; (iii) the Master Servicer's obligation to make
Advances; (iv) the adequacy of the Master Servicer's or Special Servicer's, as
the case may be, right to receive compensation for its services and
reimbursement for its costs hereunder or with respect to any particular
transaction; (v) the ownership, servicing or management for others of any other
mortgage loans or mortgaged properties by the Master Servicer or Special
Servicer; (vi) any option to purchase any Mortgage Loan or Companion Loan it may
have; and (vii) any other debt the Master Servicer or the Special Servicer or
any of its Affiliates has extended to any Mortgagor or any of its Affiliates
(the foregoing, collectively referred to as the "Servicing Standards").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans and
Companion Loans as to which a Servicing Transfer Event has occurred and is
continuing (the "Specially Serviced Mortgage Loans") and (ii) any REO
Properties; provided that the Master Servicer shall continue to receive payments
and make all calculations, and prepare, or cause to be prepared, all reports,
required hereunder with respect to the Specially Serviced Mortgage Loans, except
for the reports specified herein as prepared by the Special Servicer, as if no
Servicing Transfer Event had occurred and with respect to the REO Properties
(and the related REO Loans) as if no REO Acquisition had occurred, and to render
such services with respect to such Specially Serviced Mortgage Loans and REO
Properties as are specifically provided for herein; provided, further, however,
that the Master Servicer shall not be liable for failure to comply with such
duties insofar as such failure results from a failure of the Special Servicer to
provide sufficient information to the Master Servicer to comply with such duties
or failure by the Special Servicer to otherwise comply with its obligations
hereunder. Each Mortgage Loan or Companion Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until satisfaction of the
conditions specified in Section 3.21(a). Without limiting the foregoing, subject
to Section 3.21, the Master Servicer shall be obligated to service and
administer all Mortgage Loans and Companion Loans, which are not Specially
Serviced Mortgage Loans. The Special Servicer shall make the inspections, use
its reasonable efforts to collect the statements and forward to the Master
Servicer the reports in respect of the related Mortgaged Properties with respect
to Specially Serviced Mortgage Loans in accordance with Section 3.12. After
notification to the Master Servicer, the Special Servicer may contact the
Mortgagor of any Non-Specially Serviced Mortgage Loan if efforts by the Master
Servicer to collect required financial information have been unsuccessful or any
other issues remain unresolved. Such contact shall be coordinated through and
with the cooperation of the Master Servicer. No provision herein contained shall
be construed as an express or implied guarantee by the Master Servicer or the
Special Servicer of the collectability or recoverability of payments on the
Mortgage Loans or shall be construed to impair or adversely affect any rights or
benefits provided by this Agreement to the Master Servicer or the Special
Servicer (including with respect to Servicing Fees, Special Servicing Fees or
the right to be reimbursed for Advances and interest accrued thereon). Any
provision in this Agreement for any Advance by the Master Servicer or the
Trustee is intended solely to provide liquidity for the benefit of the
Certificateholders and not as credit support or otherwise to impose on any such
Person the risk of loss with respect to one or more of the Mortgage Loans. No
provision hereof shall be construed to impose liability on the Master Servicer
or the Special Servicer for the reason that any recovery to the
Certificateholders in respect of a Mortgage Loan at any time after a
determination of present value recovery is less than the amount reflected in
such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements, and applicable law, the
Master Servicer and the Special Servicer each shall have full power and
authority, acting alone or, in the case of the Master Servicer, subject to
Section 3.22, through one or more Sub-Servicers, to do or cause to be done any
and all things in connection with such servicing and administration for which it
is responsible which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name (or in the name of the Trustee and, if applicable, the
Companion Holder), is hereby authorized and empowered by the Trustee to execute
and deliver, on behalf of the Certificateholders and the Trustee or any of them,
with respect to each Mortgage Loan (and, with respect to a Companion Loan, the
Companion Holder) it is obligated to service under this Agreement: (i) any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the related Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) subject to Sections 3.08 and 3.20, any and
all modifications, waivers, amendments or consents to, under or with respect to
any documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, pledge agreements and other
documents in connection with a defeasance, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall furnish, or cause to be furnished, to the Master Servicer or the
Special Servicer any powers of attorney and other documents necessary or
appropriate to enable the Master Servicer or the 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 the Master Servicer
or the Special Servicer. Notwithstanding anything contained herein to the
contrary, the Master Servicer or the Special Servicer, as the case may be, shall
not, 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 the Special Servicer's, as the case may be, representative
capacity or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be required to be registered to do business in any state.
(c) To the extent the Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action which requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Bank of America Plaza
Companion Loan Securities), the Master Servicer shall require the costs of such
written confirmation to be borne by the related Mortgagor. To the extent the
terms of the related Mortgage Loan documents or Companion Loan documents require
the Mortgagor to bear the costs of any confirmation of the Rating Agencies that
an action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Bank of America Plaza
Companion Loan Securities), the Master Servicer shall not waive the requirement
that such costs and expenses be borne by the related Mortgagor. To the extent
that the terms of the related Mortgage Loan documents or Companion Loan
documents are silent as to who bears the costs of any confirmation of the Rating
Agencies that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates (or of any class of
Bank of America Plaza Companion Loan Securities), the Master Servicer shall use
reasonable efforts to have the Mortgagor bear such costs and expenses. The
Master Servicer shall not be responsible for the payment of such costs and
expenses out of pocket.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof by the Master Servicer and (ii) the Closing Date, (x) the
applicable Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement
shall notify each provider of a letter of credit for each Mortgage Loan
identified as having a letter of credit on the Mortgage Loan Schedule, that the
Trust (in care of the Master Servicer) for the benefit of the Certificateholders
and any related Companion Holders shall be the beneficiary under each such
letter of credit and (y) the Master Servicer shall notify each lessor under a
Ground Lease for each Mortgage Loan identified as subject to a leasehold
interest on the Mortgage Loan Schedule, that the Master Servicer or the Special
Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders. If a letter of credit is required to be drawn upon earlier
than the date the applicable Mortgage Loan Seller has notified the provider of
such letter of credit pursuant to clause (i) of the immediately preceding
sentence, such Mortgage Loan Seller shall cooperate with the reasonable requests
of the Master Servicer or Special Servicer in connection with making a draw
under such letter of credit. If the Mortgage Loan documents do not require the
related Mortgagor to pay any costs and expenses relating to any modifications to
or assignment of the related letter of credit, then the applicable Mortgage Loan
Seller shall pay such costs and expenses. If the Mortgage Loan documents require
the related Mortgagor to pay any costs and expenses relating to any
modifications to the related letter of credit, and such Mortgagor fails to pay
such costs and expenses after the Master Servicer has exercised reasonable
efforts to collect such costs and expenses from such Mortgagor, then the Master
Servicer shall give the applicable Mortgage Loan Seller notice of such failure
and the amount of costs and expenses, and such Mortgage Loan Seller shall pay
such costs and expenses. The costs and expenses of any modifications to Ground
Leases shall be paid by the related Mortgagor. Neither the Master Servicer nor
the Special Servicer shall have any liability for the failure of any Mortgage
Loan Seller to perform its obligations under the related Mortgage Loan Purchase
Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer (or the Trustee, as applicable) make a Servicing
Advance with respect to any Companion Loan or the Bank of America Plaza
Companion Note to the extent the related AB Mortgage Loan or the Bank of America
Plaza Mortgage Loan has been paid in full or is no longer included in the Trust
Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder and in accordance with the related Intercreditor Agreement
for so long as the corresponding AB Mortgage Loan or any related REO Property is
part of the Trust Fund or for such longer period as any amounts payable by the
related Companion Holder to or for the benefit of the Trust or any party hereto
in accordance with the related Intercreditor Agreement remain due and owing.
(i) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any AB Mortgage Loan or the Bank of
America Plaza Whole Loan or other Mortgage Loan that may become subject to an
Intercreditor Agreement in the future, it shall, subject to Section 3.21, use
commercially reasonable efforts to enforce, on behalf of the Trust (taking into
consideration the Companion Loans as a collective whole), subject to the
Servicing Standards and to the extent the Special Servicer determines such
action is in the best interests of the Trust Fund, all rights conveyed to the
Trustee pursuant to any such Intercreditor Agreement. The costs and expenses
incurred by the Special Servicer in connection with such enforcement shall be
paid from the Certificate Account as a trust fund expense.
(j) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the servicing and administration of the Bank
of America Plaza Whole Loan shall continue hereunder even if the Bank of America
Plaza Mortgage Loan is no longer part of the Trust Fund, until such time as a
separate servicing agreement is entered into in accordance with the Bank of
America Plaza Intercreditor Agreement (it being acknowledged that neither the
Master Servicer nor the Special Servicer shall be obligated under a separate
agreement to which it is not a party).
(k) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's and the Special
Servicer's obligations and responsibilities hereunder and the Master Servicer's
and the Special Servicer's authority with respect to the Bank of America Plaza
Mortgage Loan are limited by and subject to the terms of the Bank of America
Plaza Intercreditor Agreement. The Master Servicer (or, with respect to any
Specially Serviced Loan, the Special Servicer) shall use reasonable efforts
consistent with the Servicing Standards to obtain the benefits of the rights of
the Trust Fund (as holder of the Bank of America Plaza Mortgage Loan) under the
Bank of America Plaza Intercreditor Agreement. In the event of any conflict
between this Agreement and the Bank of America Plaza Intercreditor Agreement,
the provisions of the Bank of America Plaza Intercreditor Agreement shall
control.
(l) For purposes of calculating the Monthly Payment with respect to
the Bank of America Plaza Companion Note, the Master Servicer, with respect to
each Due Date, shall use the Mortgage Rate provided to the Master Servicer by
the Bank of America Plaza Companion Noteholder pursuant to the Bank of America
Plaza Intercreditor Agreement.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
Master Servicer and the Special Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the Mortgage
Loans and Companion Loans (subject to the right of certain Companion Holders to
receive payments directly from the related Mortgagor pursuant to the related
Intercreditor Agreement) it is obligated to service hereunder, and shall follow
such collection procedures as are consistent with this Agreement (including,
without limitation, the Servicing Standards), provided that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. The Master Servicer or the Special Servicer, as
applicable, may in its discretion waive any Penalty Charge (other than a Penalty
Charge payable with respect to the Bank of America Plaza Companion Note after
the securitization of the Bank of America Plaza Companion Note without the
consent of the Bank of America Plaza Companion Noteholder) in connection with
any delinquent payment on a Mortgage Loan or Companion Loan it is obligated to
service hereunder three times during any period of twenty-four consecutive
months with respect to any Mortgage Loan or Companion Loan; provided, that the
Master Servicer or the Special Servicer, as applicable, may in its discretion
waive any Penalty Charge (other than a Penalty Charge payable with respect to
the Bank of America Plaza Companion Note after the securitization of the Bank of
America Plaza Companion Note without the consent of the Bank of America Plaza
Companion Noteholder) in connection with any delinquent payment on a Mortgage
Loan or Companion Loan one additional time in such 24-month period so long as
with respect to any of the foregoing waivers, no Advance or additional Trust
Fund expense has been incurred and remains unreimbursed to the Trust with
respect to such Mortgage Loan or Companion Loan. Any additional waivers during
such 24-month period with respect to such Mortgage Loan may be made only after
the Master Servicer or Special Servicer, as applicable, has given notice of a
proposed waiver to the Directing Certificateholder and the Directing
Certificateholder has consented to such additional waiver (provided that if the
Master Servicer or Special Servicer, as applicable, fails to receive a response
to such notice from the Directing Certificateholder in writing within five (5)
days of giving such notice, then the Directing Certificateholder shall be deemed
to have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to each Loan Pair, in
accordance with the related Intercreditor Agreement) and, in the absence of such
express provisions, such payments from Mortgagors, Insurance and Condemnation
Proceeds or Liquidation Proceeds shall be applied (after reimbursement first to
the Trustee and second to the Master Servicer for any related outstanding
Advances (including Workout Delayed Reimbursement Amounts that have not been
reimbursed to the Master Servicer) and interest thereon as provided herein and
unpaid servicing compensation, Liquidation Expenses and related additional Trust
Fund expenses): first, as a recovery of accrued and unpaid interest on such
Mortgage Loan or Companion Loan, as applicable, at the related Mortgage Rate in
effect from time to time to but not including the Due Date in the Due Period of
receipt; second, as a recovery of Unliquidated Advances; third, as a recovery of
principal of such Mortgage Loan or Companion Loan then due and owing, in each
case, that were paid from collections on the Mortgage Loans or Companion Loan
and resulted in principal distributed to the Certificateholders being reduced as
a result of the first proviso in the definition of "Principal Distribution
Amount", "Loan Group 1 Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount"; fourth, as a recovery of Nonrecoverable Advances; fifth,
in accordance with the Servicing Standards, as a recovery of any other amounts
due and owing on such Mortgage Loan or Companion Loan, as applicable, including,
without limitation, Penalty Charges and Yield Maintenance Charges; and sixth, as
a recovery of principal of such Mortgage Loan or Companion Loan, as applicable,
to the extent of its entire unpaid principal balance. Notwithstanding the
preceding, such provisions shall not be deemed to affect the priority of
distributions of payments. To the extent that such amounts are paid by a party
other than a Mortgagor, such amounts shall be deemed to have been paid in
respect of a purchase of all or part of the Mortgaged Property (in the case of
Insurance and Condemnation Proceeds or Liquidation Proceeds) and then paid by
the Mortgagor under the Mortgage Loan or Companion Loan, as applicable, in
accordance with the preceding sentence. Amounts collected on any REO Loan shall
be deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Loan Pair, the related Companion Loan and
Intercreditor Agreement) and applicable law, the Master Servicer shall apply all
Insurance and Condemnation Proceeds it receives on a day other than the Due Date
to amounts due and owing under the related Mortgage Loan or Companion Loan as if
such Insurance and Condemnation Proceeds were received on the Due Date
immediately succeeding the month in which such Insurance and Condemnation
Proceeds were received.
(d) [Reserved].
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer shall, to the extent consistent with the
Servicing Standards, hold such escrows, letters of credit and proceeds thereof
as additional collateral and not apply such items to reduce the principal
balance of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents, applicable law or court order.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) The Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents. Any
Servicing Accounts related to the Bank of America Plaza Whole Loan shall be held
for the benefit of the Certificateholders and the Bank of America Plaza
Companion Noteholder collectively, but this shall not be construed to modify
their respective interests therein as set forth in the Bank of America Plaza
Intercreditor Agreement. Amounts on deposit in Servicing Accounts may only be
invested in accordance with the terms of the related Mortgage Loan documents or
in Permitted Investments in accordance with the provisions of Section 3.06.
Servicing Accounts shall be Eligible Accounts to the extent permitted by the
terms of the related Mortgage Loan documents. Withdrawals of amounts so
deposited from a Servicing Account may be made only to: (i) effect payment of
items for which Escrow Payments were collected and comparable items; (ii)
reimburse the Trustee and then the Master Servicer, if applicable, for any
Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to
be overages; (iv) pay interest to Mortgagors on balances in the Servicing
Account, if required by applicable law or the terms of the related Mortgage Loan
or Companion Loan and as described below or, if not so required, to the Master
Servicer; (v) after the occurrence of an event of default under the related
Mortgage Loan or Companion Loan, apply amounts to the indebtedness under the
applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts deposited in
error; (vii) pay Penalty Charges to the extent permitted by the related Mortgage
Loan documents; or (viii) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. As part of its
servicing duties, the Master Servicer shall pay or cause to be paid to the
Mortgagors interest on funds in Servicing Accounts, to the extent required by
law or the terms of the related Mortgage Loan or Companion Loan; provided,
however, that in no event shall the Master Servicer be required to remit to any
Mortgagor any amounts in excess of actual net investment income or funds in the
related Servicing Account. If allowed by the related Mortgage Loan documents and
applicable law, the Master Servicer may charge the related Mortgagor an
administrative fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans, and the Master
Servicer, in the case of all other Mortgage Loans (and each Companion Loan),
shall maintain accurate records with respect to each 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. The Special Servicer, in the case
of REO Loans, and the Master Servicer, in the case of all other Mortgage Loans
and Companion Loans, shall use reasonable efforts consistent with the Servicing
Standards to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and shall effect payment thereof from the REO
Account or by the Master Servicer as Servicing Advances prior to the applicable
penalty or termination date and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items, employing for such purpose Escrow
Payments (which shall be so applied by the Master Servicer at the written
direction of the Special Servicer in the case of REO Loans) as allowed under the
terms of the related Mortgage Loan or Companion Loan. The Master Servicer shall
service and administer any reserve accounts (including monitoring, maintaining
or changing the amounts of required escrows) in accordance with the terms of
such Mortgage Loan and the Servicing Standards. To the extent that a Mortgage
Loan (or a Companion Loan) does not require a Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of REO Loans,
and the Master Servicer, in the case of all other Mortgage Loans and Companion
Loans, shall use reasonable efforts consistent with the Servicing Standards to
cause the Mortgagor to comply with its obligation to make payments in respect of
such items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans and Loan Pairs, the Master Servicer shall advance all such funds as are
necessary for the purpose of effecting the payment of (i) real estate taxes,
assessments and other similar items that are or may become a lien thereon, (ii)
ground rents (if applicable) and (iii) premiums on Insurance Policies, in each
instance if and to the extent Escrow Payments collected from the related
Mortgagor (or related REO Revenues, if applicable) are insufficient to pay such
item when due and the related Mortgagor has failed to pay such item on a timely
basis, and provided, however, that the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance and provided, further, however,
that with respect to the payment of taxes and assessments, the Master Servicer
shall not be required to make such advance until the later of five Business Days
after the Master Servicer, the Special Servicer or the Trustee, as applicable,
has received confirmation that such item has not been paid or the date prior to
the date after which any penalty or interest would accrue in respect of such
taxes or assessments. The Special Servicer shall give the Master Servicer and
the Trustee no less than five Business Days' written (facsimile or electronic)
notice before the date on which the Master Servicer is requested to make any
Servicing Advance with respect to a given Specially Serviced Mortgage Loan or
REO Property; provided, however, that only two Business Days' written (facsimile
or electronic) notice shall be required in respect of Servicing Advances
required to be made on an emergency or urgent basis; provided, further, that the
Special Servicer shall not be entitled to make such a request (other than for
Servicing Advances required to be made on an urgent or emergency basis) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer may pay the aggregate
amount of such Servicing Advances listed on a monthly request to the Special
Servicer, in which case the Special Servicer shall remit such Servicing Advances
to the ultimate payees. In addition, the Special Servicer shall provide the
Master Servicer and the Trustee with such information in its possession as the
Master Servicer or the Trustee, as applicable, may reasonably request to enable
the Master Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Advance. Any
request by the Special Servicer that the Master Servicer make a Servicing
Advance shall be deemed to be a determination by the Special Servicer that such
requested Servicing Advance is not a Nonrecoverable Advance, and the Master
Servicer shall be entitled to conclusively rely on such determination; provided,
that the determination shall not be binding on the Master Servicer or Trustee.
On the first Business Day after the Determination Date for the related
Distribution Date, the Special Servicer shall report to the Master Servicer if
the Special Servicer determines any Servicing Advance previously made by the
Master Servicer with respect to a Specially Serviced Mortgage Loan or REO Loan
is a Nonrecoverable Servicing Advance. The Master Servicer shall be entitled to
conclusively rely on such a determination, and such determination shall be
binding upon the Master Servicer, but shall in no way limit the ability of the
Master Servicer in the absence of such determination to make its own
determination that any Advance is a Nonrecoverable Advance. Notwithstanding the
foregoing, if the Special Servicer makes a determination that only a portion,
and not all, of any previously made or proposed Advance is a Nonrecoverable
Advance, the Master Servicer shall have the right to make its own subsequent
determination that any remaining portion of any such previously made or proposed
Advance is a Nonrecoverable Advance. All such Advances shall be reimbursable in
the first instance from related collections from the Mortgagors and further as
provided in Section 3.05. No costs incurred by the Master Servicer or the
Special Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of the Mortgaged Properties shall,
for purposes hereof, including, without limitation, the Paying Agent's
calculation of monthly distributions to Certificateholders, be added to the
unpaid principal balances of the related Mortgage Loans or the Companion Loans,
notwithstanding that the terms of such Mortgage Loans or the Companion Loans so
permit. If the Master Servicer fails to make any required Servicing Advance as
and when due (including any applicable cure periods), to the extent the Trustee
has actual knowledge of such failure, the Trustee shall make such Servicing
Advance pursuant to Section 7.05. Notwithstanding anything herein to the
contrary, no Servicing Advance shall be required hereunder if such Servicing
Advance would, if made, constitute a Nonrecoverable Servicing Advance. In
addition, the Master Servicer shall consider Unliquidated Advances in respect of
prior Servicing Advances for purposes of nonrecoverability determinations. The
Special Servicer shall have no obligation to make any Servicing Advances under
this Agreement.
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the Certificate Account (which shall be deemed first made from amounts
distributable as principal and then from all other amounts comprising general
collections) to pay for certain expenses set forth below notwithstanding that
the Master Servicer (or Special Servicer, as applicable) has determined that a
Servicing Advance with respect to such expenditure would be a Nonrecoverable
Servicing Advance (unless, with respect to Specially Serviced Mortgage Loans or
REO Loans, the Special Servicer has notified the Master Servicer to not make
such expenditure), where making such expenditure would prevent (i) the related
Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any
event that would cause a loss of the priority of the lien of the related
Mortgage, or the loss of any security for the related Mortgage Loan; provided
that in each instance, the Master Servicer or the Special Servicer, as
applicable, determines in accordance with the Servicing Standards (as evidenced
by an Officer's Certificate delivered to the Trustee) that making such
expenditure is in the best interest of the Certificateholders (and, if
applicable the Companion Holders), all as a collective whole. The Master
Servicer or Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of 3.19(c).
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and then the
Master Servicer, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in the Certificate Account interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of such Servicing
Advance from the date made to, but not including, the date of reimbursement.
Subject to Section 3.19(c), the Master Servicer shall reimburse itself or the
Trustee, as the case may be, for any outstanding Servicing Advance as soon as
practically possible after funds available for such purpose are deposited in the
Certificate Account subject to the Master Servicer's or the Trustee's options
and rights to defer recovery of such amounts as provided herein.
(e) 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 Mortgagor 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 repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions 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 be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Master Servicer shall, in
accordance with the Servicing Standards, determine whether the related Mortgagor
has failed to perform its obligations under the related Mortgage Loan and report
any such failure to the Special Servicer within a reasonable time after the
making of the request for written confirmation.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account and the Gain-on-Sale Reserve Account. (a) The Master Servicer shall
establish and maintain, or cause to be established and maintained, a Certificate
Account in 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 receipt of
available funds (in the case of payments by Mortgagors or other collections on
the Mortgage Loans or Companion Loans), except as otherwise specifically
provided herein, the following payments and collections received or made by or
on behalf of it subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans or Companion Loans due and payable
on or before the Cut-off Date, which payments shall be delivered promptly to the
appropriate Mortgage Loan Seller or its designee and other than any amounts
received from Mortgagors which are received in connection with the purchase of
defeasance collateral), or payments (other than Principal Prepayments) received
by it on or prior to the Cut-off Date but allocable to a period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Yield Maintenance Charges and Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than (i) Liquidation
Proceeds that are received in connection with the purchase by the Master
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01 and (ii) any
proceeds that are received in connection with the purchase of a Companion
Loan from a securitization by the related mortgage loan seller, which
shall be paid directly to the servicer of such securitization) together
with any recovery of Unliquidated Advances in respect of the related
Mortgage Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(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 the Certificate Account; and
(vii) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy.
Notwithstanding the foregoing requirements, the Master Servicer need
not deposit into the Certificate Account any amount that the Master Servicer
would be authorized to withdraw immediately from such account in accordance with
the terms of Section 3.05 and shall be entitled to instead immediately pay such
amount directly to the Person(s) entitled thereto; provided that such amounts
shall be applied in accordance with the terms hereof and shall be reported as if
deposited in such Certificate Account and then withdrawn.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
Master Servicer in the Certificate Account. If the Master Servicer shall deposit
in the Certificate Account any amount not required to be deposited therein, it
may at any time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. Assumption, extension and modification
fees actually received from Mortgagors on Specially Serviced Mortgage Loans
shall be promptly delivered to the Special Servicer as additional servicing
compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Master
Servicer for deposit into the Certificate Account, in accordance with this
Section 3.04(a). Any such amounts received by the Special Servicer with respect
to an REO Property shall be deposited by the Special Servicer into the REO
Account and remitted to the Master Servicer for deposit into the Certificate
Account, pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
without recourse or warranty such check to the order of the Master Servicer and
shall promptly deliver any such check to the Master Servicer by overnight
courier.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account for the Master Servicer shall be located at the
offices of 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. The
Master Servicer shall give notice to the Trustee, the Special Servicer, the
Paying Agent and the Depositor of the new location of the Certificate Account
prior to any change thereof.
(b) The Paying Agent, on behalf of the Trustee, shall establish and
maintain the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Interest Reserve Account and the Gain-on-Sale Reserve Account in
trust for the benefit of the Certificateholders (and the Trustee as holder of
the Uncertificated Lower-Tier Interests). The Master Servicer shall deliver to
the Paying Agent each month on or before the P&I Advance Date therein, for
deposit in the Lower-Tier Distribution Account, that portion of the Available
Distribution Amount attributable to the Mortgage Loans (in each case, calculated
without regard to clauses (a)(iv), (a)(viii), (c) and (d) of the definition of
Available Distribution Amount) for the related Distribution Date.
With respect to the Companion Loans, the Companion Paying Agent
shall establish and maintain an account, which may be a subaccount of the
Certificate Account, for distributions to each Companion Holder (the "Companion
Distribution Account") to be held for the benefit of the related Companion
Holder and shall, promptly upon receipt, deposit in the Companion Distribution
Account any and all amounts received by the Companion Paying Agent that are
required by the terms of this Agreement or the applicable Intercreditor
Agreement to be deposited therein. The Master Servicer shall deliver to the
Companion Paying Agent each month, on or before the P&I Advance Date therein,
for deposit in the Companion Distribution Account, an aggregate amount of
immediately available funds, to the extent of available funds, equal to the
amount to be distributed to the related Companion Holder pursuant to the terms
of this Agreement and the related Intercreditor Agreement.
Notwithstanding the preceding paragraph, the following provisions
shall apply to remittances relating to the Bank of America Plaza Companion Note.
On each Bank of America Plaza Remittance Date, the Master Servicer shall
withdraw from the Certificate Account (or applicable portion thereof) an
aggregate amount equal to all payments and/or collections actually received on
the Bank of America Plaza Companion Note on or prior to such dates; provided,
however, that in no event shall the Master Servicer be required to transfer to
the Companion Distribution Account any portion thereof that is payable or
reimbursable to or at the direction of any party to this Agreement under the
other provisions of this Agreement and/or the Bank of America Plaza
Intercreditor Agreement. On each Bank of America Plaza Remittance Date, the
Companion Paying Agent shall make the payments and remittance described in
Section 4.01(j) of this Agreement, which payments and remittance shall be made,
in each case, on the Bank of America Plaza Remittance Date.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account and the
Companion Distribution Account may be subaccounts of a single Eligible Account,
which shall be maintained as a segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, the
Master Servicer shall, as and when required hereunder, deliver to the Paying
Agent for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19 as Compensating Interest Payments in connection
with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be deposited
in the Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Master
Servicer shall not have delivered to the Paying Agent for deposit in the
Lower-Tier Distribution Account the amounts required to be deposited therein
pursuant to the provisions of this Agreement (including any P&I Advance pursuant
to Section 4.03(a) hereof), the Master Servicer shall pay the Paying Agent
interest on such late payment at the Prime Rate from and including the date such
payment was required to be made (without regard to any grace period set forth in
Section 7.01(a)(i)) until (but not including) the date such late payment is
received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Paying Agent that are
required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit 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 Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Companion Distribution Account, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account may be invested and, if
invested, shall be invested by, and at the risk of, the Paying Agent in
Permitted Investments selected by the Paying Agent which shall mature, unless
payable on demand, not later such time on the Distribution Date which will allow
the Paying Agent to make withdrawals from the Distribution Account, and any such
Permitted Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Permitted Investments shall be made in the
name of "LaSalle Bank National Association, as Trustee for the Holders of the
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-CIBC17 Trust,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17 as their
interests may appear." None of the Trust, the Depositor, the Mortgagors, the
Special Servicer or the Master Servicer shall be liable for any loss incurred on
such Permitted Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, any provision herein to the contrary
notwithstanding.
As of the Closing Date, the Interest Reserve Account, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account shall be located at
the offices of the Paying Agent. The Paying Agent shall give notice to the
Trustee, the Master Servicer and the Depositor of the location of the Interest
Reserve Account, the Upper-Tier Distribution Account and the Lower-Tier
Distribution Account and, if established, the Gain-on-Sale Reserve Account, and
of the proposed location of such accounts prior to any change thereof.
(c) [Reserved].
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the Companion Paying Agent for deposit into the Companion Distribution
Account.
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts and the Companion Distribution Account. (a) The Master
Servicer may, from time to time, make withdrawals from the Certificate Account
for any of the following purposes (without duplication of the same payment or
reimbursement):
(i) (A) no later than 4:00 p.m. New York City time on each P&I
Advance Date, to remit to the Paying Agent for deposit in the Lower-Tier
Distribution Account the amounts required to be remitted pursuant to the
first paragraph of Section 3.04(b) and Section 3.04(c) or that may be
applied to make P&I Advances pursuant to Section 4.03(a); and (B) pursuant
to the second paragraph of Section 3.04(b), to remit to the Companion
Paying Agent for deposit in the Companion Distribution Account the amounts
required to be so deposited on the date specified in the related
Intercreditor Agreement with respect to the Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan, Specially Serviced Mortgage Loan and REO
Loan, as applicable, the Master Servicer's rights to payment of Servicing
Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan,
as applicable, and any expense incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of related REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds (provided that, in the case of
such payment relating to an AB Mortgage Loan, such payment shall be made
first, from amounts collected on the related Companion Loan and then from
the related Mortgage Loan, subject to the terms of the related
Intercreditor Agreement and provided, further that with respect to the
Bank of America Plaza Whole Loan, such expenses shall be reimbursed as
among the Bank of America Plaza Notes in the priority and subject to the
limitations set forth in the Bank of America Plaza Intercreditor
Agreement), and then out of general collections on the Mortgage Loans and
REO Properties;
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections of interest
(net of the related Servicing Fee) on and principal of the particular
Mortgage Loans and REO Loans with respect to which such P&I Advances were
made; 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 Certificate Account from time to time that represent
collections or recoveries of principal to the extent provided in clause
(v) below (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05(a)); provided, further, that if such
Advance becomes a Nonrecoverable Advance, then such Advance shall be
reimbursable pursuant to clause (v) below and provided, further that with
respect to the Bank of America Plaza Mortgage Loan, reimbursement of P&I
Advances shall be made only from amounts collected with respect to the
Bank of America Plaza Mortgage Loan (and not from any amounts collected
with respect to the Bank of America Plaza Companion Note) prior to
reimbursement from other funds unrelated to the Bank of America Plaza
Whole Loan on deposit in the Certificate Account;
(iv) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order), for unreimbursed Servicing Advances, the
Master Servicer's, the Special Servicer's or the Trustee's respective
rights to receive payment pursuant to this clause (iv) with respect to any
Mortgage Loan, Companion Loan or REO Property being limited to, as
applicable, related payments, Liquidation Proceeds, Insurance and
Condemnation Proceeds and REO Revenues (provided that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related Mortgage Loan in accordance with the terms of the
related Intercreditor Agreement; and provided that, in case of such
reimbursement relating to the Bank of America Plaza Whole Loan, such
reimbursements shall be made from amounts collected on the Bank of America
Plaza Whole Loan in accordance with the terms of the related Bank of
America Plaza Intercreditor Agreement prior to reimbursement from other
funds unrelated to the Bank of America Plaza Whole Loan on deposit in the
Certificate Account); 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 Certificate Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below (to be allocated between the Loan Groups as set forth in
the last paragraph of Section 3.05(a)); provided, further, that if such
Advance becomes a Nonrecoverable Advance, then such Advance shall be
reimbursable pursuant to clause (v) below;
(v) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order) (1) for Nonrecoverable Advances first, out of
REO Revenues, Liquidation Proceeds and Insurance and Condemnation Proceeds
received on the related Mortgage Loan and Companion Loan (with respect to
such Companion Loan, only for Nonrecoverable Servicing Advances), then,
out of the principal portion of general collections on the Mortgage Loans
and REO Properties (to be allocated between the Loan Groups as set forth
in the last paragraph of Section 3.05(a)), then, to the extent the
principal portion of general collections is insufficient and with respect
to such excess only, subject to any exercise of the sole option to defer
reimbursement thereof pursuant to Section 3.19(c), out of other
collections on the Mortgage Loans and REO Properties (to be allocated
between the Loan Groups as set forth in the last paragraph of Section
3.05(a)) and, (2) with respect to the Workout-Delayed Reimbursement
Amounts, out of the principal portion of the general collections on the
Mortgage Loans and REO Properties (to be allocated between the Loan Groups
as set forth in the last paragraph of Section 3.05(a)) net of such amounts
being reimbursed pursuant to (1) above (provided that, in case of such
reimbursement relating to an AB Mortgage Loan and/or a Companion Loan
related thereto, such reimbursement shall be made first, from amounts
collected on the related Companion Loan and then from the related Mortgage
Loan in accordance with the terms of the related Intercreditor Agreement;
and provided that, in case of such reimbursement with respect to
Nonrecoverable Servicing Advances relating to the Bank of America Plaza
Whole Loan, such reimbursements in this clause (v) shall be made from any
amounts collected on the Bank of America Plaza Notes in accordance with
the terms of the Bank of America Plaza Intercreditor Agreement prior to
reimbursement from other funds unrelated to the Bank of America Plaza
Whole Loan on deposit in the Certificate Account; provided, further, that
with respect to the Bank of America Plaza Mortgage Loan, reimbursement of
Nonrecoverable P&I Advances from funds collected from the Bank of America
Plaza Whole Loan shall be made only from amounts collected with respect to
the Bank of America Plaza Mortgage Loan (and not from any amounts
collected with respect to the Bank of America Plaza Companion Note), in
accordance with the terms of the Bank of America Plaza Intercreditor
Agreement prior to reimbursement from other funds unrelated to the Bank of
America Plaza Whole Loan on deposit in the Certificate Account) or to pay
itself, with respect to any Mortgage Loan and the Companion Loans, if
applicable, or REO Property any related earned Servicing Fee that remained
unpaid in accordance with clause (ii) above following a Final Recovery
Determination made with respect to such Mortgage Loan or REO Property and
the deposit into the Certificate Account of all amounts received in
connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order) or any servicing party for a related
securitization trust in respect of the Bank of America Plaza Companion
Note for (a) any xxxxxxxxxxxx X&X Advance (including any such P&I Advance
that constitutes a Workout-Delayed Reimbursement Amount) pursuant to
clause (iii) above, to pay itself and/or the Trustee or such other
servicing party, as applicable, any interest accrued and payable thereon
in accordance with Sections 4.03(d) and 3.11(c), (b) any unreimbursed
Servicing Advances (including any such Servicing Advance that constitutes
a Workout-Delayed Reimbursement Amount) pursuant to clause (iv) above, to
pay itself or the Trustee or such servicing party, as the case may be, any
interest accrued and payable thereon in accordance with Sections 3.03(d)
and 3.11(c) or (c) any Nonrecoverable Advances pursuant to clause (v)
above, to pay itself or the Trustee or such other servicing party, as the
case may be, any interest accrued and payable thereon; provided, that in
all events interest on P&I Advances on the Bank of America Plaza Mortgage
Loan shall not be paid from funds available and received on the Bank of
America Plaza Companion Note;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage Loan
or Companion Loan that represents such expense in accordance with clause
(iv) of the definition of Purchase Price; provided that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related AB Mortgage Loan to the extent provided in the
related Intercreditor Agreement;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties, for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 6 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (provided that, in case of such reimbursement out
of Liquidation Proceeds, and Insurance and Condemnation Proceeds described
above relating to an AB Mortgage Loan, such reimbursements shall be made
first, from amounts collected on the related Companion Loan and then from
general collections on the Mortgage Loans in accordance with the terms of
the related Intercreditor Agreement), except that in the case of the Bank
of America Plaza Mortgage Loan, such amounts shall be reimbursed only from
amounts payable with respect to the Bank of America Plaza Mortgage Loan in
accordance with the Bank of America Plaza Intercreditor Agreement and not
from the related Bank of America Plaza Companion Note;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account and the Companion Distribution Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings
with respect to the Certificate Account and the Companion Distribution
Account for the period from and including the prior Distribution Date to
and including the P&I Advance Date related to such Distribution Date) and
(B) Penalty Charges (other than Penalty Charges collected while the
related Mortgage Loan is a Specially Serviced Mortgage Loan), but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
have been paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other than
Special Servicing Fees) in accordance with Section 3.11(d); and (b) to pay
the Special Servicer, as additional servicing compensation in accordance
with Section 3.11(c), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, out of general collections, any amounts
payable to any such Person pursuant to Section 6.03(a) or 6.03(b)
(provided that, in case of such payments relating to an AB Mortgage Loan,
such reimbursements shall be made first, from amounts collected on the
related Companion Loan and then from the related Mortgage Loan in
accordance with the terms of the related Intercreditor Agreement prior to
being payable out of general collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 12.01(a) or 12.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Master Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a) (provided that, in case of such
payments relating to an AB Mortgage Loan, such reimbursements shall be
made first, from amounts collected on the related Companion Loan and then
from the amounts collected on the related Mortgage Loan and available on
deposit in the Certificate Account in accordance with the terms of the
related Intercreditor Agreement prior to being payable out of general
collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicer, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Trustee and the Paying Agent out of general
collections on the Mortgage Loans and REO Properties for expenses incurred
by and reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay the applicable Mortgage Loan Seller or any other
Person, with respect to each Mortgage Loan, if any, previously purchased
by such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase relating to periods after the date of
purchase; or, in the case of the substitution for a Mortgage Loan by a
Mortgage Loan Seller pursuant to Section 2.03(b), to pay such Mortgage
Loan Seller with respect to the replaced Mortgage Loan all amounts
received thereon subsequent to the date of substitution, and with respect
to the related Qualified Substitute Mortgage Loan(s), all Monthly Payments
due thereon during or prior to the month of substitution, in accordance
with the last two sentences of the first paragraph of Section 2.03(b);
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to Section 3.04(b) without duplication of amounts remitted to the
Companion Paying Agent pursuant to clause (i) above; and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
The Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer or the Paying
Agent from the Certificate Account amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a Servicing Officer of the Special
Servicer or a Responsible Officer of the Paying Agent describing the item and
amount to which the Special Servicer or the Paying Agent 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
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account.
To the extent a Nonrecoverable Advance or Workout Delayed
Reimbursement Amount with respect to a Mortgage Loan is required to be
reimbursed from the principal portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the principal collection available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances and Workout Delayed Reimbursement Amounts related to such other Loan
Group). To the extent a Nonrecoverable Advance with respect to a Mortgage Loan
is required to be reimbursed from the interest portion of the general
collections on the Mortgage Loans pursuant to clauses (iii), (iv) or (v) of this
Section 3.05(a), such reimbursement shall be made first, from the interest
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and if the interest collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the interest
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group);
provided, however, that this provision shall not result in any change in the
interest distributions required under Section 4.01(a)(i) of this Agreement.
(b) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to be deemed to make deposits of the Lower-Tier Distribution
Amount pursuant to Section 4.01(b) and the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d) in the Upper-Tier
Distribution Account and to make distributions on the Class LR
Certificates pursuant to Section 4.01(b);
(ii) to pay to the Trustee and the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Mortgage
Loans, pursuant to Section 8.05(b);
(iii) to pay the Trustee, the Trustee Fee as contemplated by Section
8.05(a) hereof with respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by Section 12.01(a)
or 12.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent, which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 12.01(g);
(v) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the Paying Agent, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(g);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) [Reserved].
(d) The Paying Agent on behalf of the Trustee may make, or be deemed
to make, withdrawals from the Upper-Tier Distribution Account for any of the
following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, subject to the penultimate paragraph
of Section 3.04(b);
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii) and (iii), then the Trustee Fee shall be paid in full prior
to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and in
the event that amounts on deposit in the Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of such Trustee
Fee, the Trustee shall be paid based on the amount of such fees and (ii) if
amounts on deposit in the Certificate Account are not sufficient to reimburse
the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and second to the Master Servicer.
(f) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions
pursuant to Section 4.01(j).
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account. (a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Companion Distribution Account, or any
Servicing Account (for purposes of this Section 3.06, an "Investment Account"),
the Special Servicer may direct any depository institution maintaining the REO
Account (also for purposes of this Section 3.06, an "Investment Account") to
invest or if it is such depository institution, may itself invest, the funds
held therein, only in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, (i) 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, if a
Person other than the depository institution maintaining such account is the
obligor thereon and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the depository
institution maintaining such account is the obligor thereon. 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 the Certificate
Account, the Companion Distribution Account, or any Servicing Account maintained
by or for the Master Servicer) or the Special Servicer (in the case of the REO
Account or any Servicing Account maintained by or for the Special Servicer), on
behalf of the Trustee, shall maintain continuous physical possession of any
Permitted Investment of amounts in the Certificate Account, the Companion
Distribution Account, the Servicing Accounts or REO Account, as applicable, that
is either (i) a "certificated security," as such term is defined in the UCC
(such that the Trustee shall have control pursuant to Section 8-106 of the UCC)
or (ii) other property in which a secured party may perfect its security
interest by physical possession under the UCC or any other applicable law. In
the case of any Permitted Investment held in the form of a "security
entitlement" (within the meaning of Section 8-102(a)(17) of the UCC), the Master
Servicer or the Special Servicer, as applicable, shall take or cause to be taken
such action as the Trustee deems reasonably necessary to cause the Trustee to
have control over such security entitlement. 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 the Certificate Account, the
Companion Distribution Account, or any Servicing Account maintained by or for
the Master Servicer), the Special Servicer (in the case of the REO Account or
any Servicing Account maintained by or for the Special Servicer) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, the Companion Distribution Account or any Servicing
Account maintained by or for the Master Servicer, to the extent of the Net
Investment Earnings, if any, with respect to such account for the period from
and including the prior Distribution Date to and including the P&I Advance Date
related to such Distribution Date, shall be for the sole and exclusive benefit
of the Master Servicer to the extent (with respect to Servicing Accounts) not
required to be paid to the related Mortgagor and shall be subject to its
withdrawal, or withdrawal at its direction, in accordance with Section 3.03 or
Section 3.05(a), as the case may be. Interest and investment income realized on
funds deposited in the REO Account or any Servicing Account maintained by or for
the Special Servicer, to the extent of the Net Investment Earnings, if any, with
respect to such account for each period from and including any Distribution Date
to and including the immediately succeeding P&I Advance Date, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(c). In the event that any loss shall
be incurred in respect of any Permitted Investment (as to which the Master
Servicer or Special Servicer, as applicable, would have been entitled to any Net
Investment Earnings hereunder) directed to be made by the Master Servicer or
Special Servicer, as applicable, and on deposit in any of the Certificate
Account, the Companion Distribution Account, the Servicing Account or the REO
Account, the Master Servicer (in the case of the Certificate Account, the
Companion Distribution Account or any Servicing Account maintained by or for the
Master Servicer) and the Special Servicer (in the case of the REO Account or any
Servicing Account maintained by or for the Special Servicer) shall deposit
therein, no later than the P&I Advance Date, without right of reimbursement, the
amount of Net Investment Loss, if any, with respect to such account for the
period from and including the prior Distribution Date to and including the P&I
Advance Date related to such Distribution Date, provided that neither the Master
Servicer nor the Special Servicer shall be required to deposit any loss on an
investment of funds in an Investment Account if such loss is incurred solely as
a result of the insolvency of the federal or state chartered depository
institution or trust company that holds such Investment Account, so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made (and,
with respect to the Master Servicer, such federal or state chartered depository
institution or trust company is not an Affiliate of the Master Servicer unless
such depository institution or trust company satisfied the qualification set
forth in the definition of Eligible Account both (x) at the time the investment
was made and (y) 30 days prior to such insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Master Servicer may and, upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage
Loans and the Specially Serviced Mortgage Loans and the Bank of America Plaza
Whole Loan) or the Special Servicer (with respect to REO Properties) shall use
its efforts consistent with the Servicing Standards to cause the Mortgagor to
maintain, to the extent required by the terms of the related Mortgage Loan
documents all insurance coverage as is required under the related Mortgage Loan
except to the extent that the failure of the related Mortgagor to do so is an
Acceptable Insurance Default. If the Mortgagor does not so maintain such
insurance coverage, subject to its recoverability determination with respect to
any required Servicing Advance, the Master Servicer shall maintain all insurance
coverage as is required under the related Mortgage, but only in the event the
Trustee has an insurable interest therein and such insurance is available to the
Master Servicer and, if available, can be obtained at commercially reasonable
rates, except to the extent that the failure of the related Mortgagor to do so
is an Acceptable Insurance Default; provided, however, that if any Mortgage
permits the holder thereof to dictate to the Mortgagor the insurance coverage to
be maintained on such Mortgaged Property, the Master Servicer shall impose such
insurance requirements as are consistent with the Servicing Standards, provided
that, with respect to the immediately preceding proviso, the Master Servicer
will be obligated to use reasonable efforts to cause the Mortgagor to maintain
(or to itself maintain) insurance against property damage resulting from
terrorist or similar acts unless the Mortgagor's failure is an Acceptable
Insurance Default as determined by the Special Servicer (with the consent of the
Directing Certificateholder) and only in the event the Trustee has an insurable
interest therein and such insurance is available to the Master Servicer and, if
available, can be obtained at commercially reasonable rates. Subject to Section
3.17(a) and the costs of such insurance being reimbursed or paid to the Special
Servicer as provided in the penultimate sentence of this paragraph, the Special
Servicer shall maintain for each REO Property no less insurance coverage than
was previously required of the Mortgagor under the related Mortgage Loan and
Companion Loan unless the Special Servicer, with Directing Certificateholder
consent, determines that such insurance is not available at commercially
reasonable rates. All Insurance Policies maintained by the Master Servicer or
the Special Servicer shall (i) contain 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 and Companion Loans other than
REO Properties) or to the Special Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of REO Properties), (ii) be in the name of
the Trustee (in the case of insurance maintained in respect of REO Properties),
(iii) include coverage in an amount not less than the lesser of (x) the full
replacement cost of the improvements securing Mortgaged Property or the REO
Property, as applicable, or (y) the outstanding principal balance owing on the
related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any
event, the amount necessary to avoid the operation of any co-insurance
provisions, (iv) include a replacement cost endorsement providing no deduction
for depreciation (unless such endorsement is not permitted under the related
Mortgage Loan documents), (v) be noncancellable without 30 days prior written
notice to the insured party (except in the case of nonpayment, in which case
such policy shall not be cancelled without 10 days prior notice) and (vi) be
issued by a Qualified Insurer authorized under applicable law to issue such
Insurance Policies. Any amounts collected by the Master Servicer under any such
Insurance Policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with the Servicing
Standards and the provisions of the related Mortgage Loan and Companion Loan)
shall be deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any
such Insurance Policies in respect of Mortgage Loans and Companion Loans (other
than REO Properties) (i) if the Mortgagor defaults on its obligation to do so,
shall be advanced by the Master Servicer as a Servicing Advance and will be
charged to the related Mortgagor and (ii) shall not, for purposes of calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance of the related Mortgage Loan and Companion Loan, notwithstanding that
the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred
by the Special Servicer in maintaining any such Insurance Policies with respect
to REO Properties shall be an expense of the Trust payable out of the related
REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor, advanced by the Master Servicer as a Servicing Advance.
The foregoing provisions of this paragraph shall apply to the Bank of America
Plaza Whole Loan as if it were a single "Mortgage Loan".
Notwithstanding the foregoing, with respect to the Mortgage Loans or
the Bank of America Plaza Whole Loan that either (x) require the Mortgagor to
maintain "all risk" property insurance (and do not expressly permit an exclusion
for terrorism) or (y) contain provisions generally requiring the applicable
Mortgagor to maintain insurance in types and against such risks as the holder of
such Mortgage Loan or the Bank of America Plaza Whole Loan reasonably requires
from time to time in order to protect its interests, the Master Servicer will be
required to, consistent with the Servicing Standards, (A) actively monitor
whether the insurance policies for the related Mortgaged Property contain
Additional Exclusions, (B) request the Mortgagor to either purchase insurance
against the risks specified in the Additional Exclusions or provide an
explanation as to its reasons for failing to purchase such insurance and (C)
notify the Special Servicer if it has knowledge that any insurance policy
contains Additional Exclusions or if it has knowledge that any Mortgagor fails
to purchase the insurance requested to be purchased by the Master Servicer
pursuant to clause (B) above. If the Special Servicer determines in accordance
with the Servicing Standards that such failure is not an Acceptable Insurance
Default, the Special Servicer shall be required to notify the Master Servicer
and the Master Servicer shall use efforts consistent with the Servicing Standard
to cause the Mortgagor to maintain such insurance. Furthermore, the Special
Servicer or the Master Servicer, as applicable, shall inform the Rating Agencies
as to such conclusions for those Mortgage Loans that (i) have one of the ten
(10) highest outstanding Stated Principal Balances of all of the Mortgage Loans
then included in the Trust or (ii) comprise more than 5% of the outstanding
Stated Principal Balance of the Mortgage Loans then included in the Trust.
During the period that the Special Servicer or the Master Servicer, as
applicable, is evaluating the availability of such insurance, none of the Master
Servicer, the Special Servicer or the Directing Certificateholder will be liable
for any loss related to its failure to require the Mortgagor to maintain such
insurance and will not be in default of its obligations as a result of such
failure and the Master Servicer will not itself maintain such insurance or cause
such insurance to be maintained.
(b) (i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket Insurance Policy with a Qualified Insurer insuring
against fire and hazard losses on all of the Mortgage Loans, including the Bank
of America Plaza Whole Loan, or REO Properties, as the case may be, required to
be serviced and administered hereunder, then, to the extent such Insurance
Policy provides protection equivalent to the individual policies otherwise
required, the Master Servicer or the Special Servicer shall conclusively be
deemed to have satisfied its obligation to cause fire and hazard insurance to be
maintained on the related Mortgaged Properties or REO Properties. Such Insurance
Policy may contain a deductible clause, in which case the Master Servicer or the
Special Servicer shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a fire and hazard Insurance Policy complying
with the requirements of Section 3.07(a), and there shall have been one or more
losses which would have been covered by such Insurance Policy, promptly deposit
into the Certificate Account from its own funds the amount of such loss or
losses that would have been covered under the individual policy but are not
covered under the blanket Insurance Policy because of such deductible clause to
the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, including the Bank of America Plaza
Whole Loan, or in the absence of such deductible limitation, the deductible
limitation which is consistent with the Servicing Standards. In connection with
its activities as administrator and Master Servicer of the Mortgage Loans, the
Master Servicer agrees to prepare and present, on behalf of itself, the Trustee
and Certificateholders, claims under any such blanket Insurance Policy in a
timely fashion in accordance with the terms of such policy. The Special
Servicer, to the extent consistent with the Servicing Standards, may maintain,
earthquake insurance on REO Properties, provided coverage is available at
commercially reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If the Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
the Master Servicer or the Special Servicer on behalf of the Trustee as
the loss payee, then to the extent such Insurance Policy provides
protection equivalent to the individual policies otherwise required, the
Master Servicer or the Special Servicer shall conclusively be deemed to
have satisfied its obligation to cause such insurance to be maintained on
the related Mortgaged Properties and REO Properties. In the event the
Master Servicer or the Special Servicer shall cause any Mortgaged Property
or REO Property to be covered by such master single interest or
force-placed insurance policy, the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than
any minimum or standby premium payable for such policy whether or not any
Mortgaged Property or REO Property is covered thereby) shall be paid by
the Master Servicer as a Servicing Advance. Such master single interest or
force-placed policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO
Property a policy otherwise complying with the provisions of Section
3.07(a), and there shall have been one or more losses which would have
been covered by such policy had it been maintained, deposit into the
Certificate Account from its own funds the amount not otherwise payable
under the master single or force-placed interest policy because of such
deductible clause, to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan,
including the Bank of America Plaza Whole Loan, or, in the absence of any
such deductible limitation, the deductible limitation which is consistent
with the Servicing Standards.
(c) Each of the Master Servicer and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering the Master
Servicer's and the Special Servicer's, as applicable, officers and employees
acting on behalf of the Master Servicer and the Special Servicer in connection
with its activities under this Agreement. Notwithstanding the foregoing, so long
as the long term debt or the deposit obligations or claims-paying ability of the
Master Servicer or the Special Servicer, as applicable, is rated at least "Baa3"
by Xxxxx'x and "A" by Fitch, the Master Servicer or the Special Servicer, as
applicable, shall be allowed to provide self-insurance with respect to a
fidelity bond and an "errors and omissions" Insurance Policy. Such amount of
coverage shall be in such form and amount as are consistent with the Servicing
Standards. Coverage of the Master Servicer or the Special Servicer under a
policy or bond obtained by an Affiliate of the Master Servicer or the Special
Servicer and providing the coverage required by this Section 3.07(c) shall
satisfy the requirements of this Section 3.07(c). The Special Servicer and the
Master Servicer will promptly report in writing to the Trustee any material
changes that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicer and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time the Master Servicer determines in accordance with
the Servicing Standards that any Mortgaged Property is in a federally designated
special flood hazard area (and such flood insurance has been made available),
the Master Servicer will use efforts consistent with the Servicing Standards to
cause the related Mortgagor (in accordance with applicable law and the terms of
the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by the Master Servicer
in accordance with the Servicing Standards and to the extent the Trustee, as
mortgagee, has an insurable interest therein), flood insurance in respect
thereof, but only to the extent the related Mortgage Loan or Companion Loan
permits the mortgagee to require such coverage and the maintenance of such
coverage is consistent with the Servicing Standards. The Directing
Certificateholder shall have no liability with respect to such determination.
Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan or Companion Loan, and (ii) the
maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. If the cost of any insurance described above
is not borne by the Mortgagor, the Master Servicer shall promptly make a
Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Master Servicer as a Servicing
Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) As to each Mortgage Loan or Companion Loan which contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or equity
interests in the Mortgagor or principals of the Mortgagor; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) any right
it may have with respect to such Mortgage Loan or Companion Loan (x) to
accelerate the payments thereon or (y) to withhold its consent, provided that,
(i) with respect to all Non-Specially Serviced Mortgage Loans, the Master
Servicer has obtained the prior written consent of the Special Servicer, which
consent shall be deemed given 15 Business Days after receipt (unless earlier
objected to) by the Special Servicer from the Master Servicer of the Master
Servicer's written analysis and recommendation with respect to such waiver or
exercise of such right together with such other information reasonably required
by the Special Servicer, (ii) with respect to all Specially Serviced Mortgage
Loans and Non-Specially Serviced Mortgage Loans, the Special Servicer shall,
prior to consenting to such a proposed action of the Master Servicer, obtain,
and, prior to itself taking such an action, the Special Servicer shall obtain,
the prior written consent of the Directing Certificateholder, which consent
shall be deemed given 10 Business Days after receipt (unless earlier objected
to) by the Directing Certificateholder of the Master Servicer's and/or Special
Servicer's, as applicable, analysis and recommendation with respect to such
waiver together with such other information reasonably required by the Directing
Certificateholder, and (iii) with respect to any Mortgage Loan (x) with a Stated
Principal Balance greater than or equal to $20,000,000, (y) with a Stated
Principal Balance greater than 5% of the aggregate Stated Principal Balance of
all the Mortgage Loans then outstanding or (z) together with any other Mortgage
Loans cross-collateralized with such Mortgage Loan, or together with all other
Mortgage Loans with the same or an affiliated Mortgagor, is one of the ten
largest of the then outstanding Mortgage Loans, by Stated Principal Balance, the
Master Servicer or the Special Servicer, as applicable, shall not take such
action unless it has obtained confirmation from each Rating Agency stating that
none of the then-current rating or ratings of all outstanding Classes of the
Certificates and, if applicable, of the Bank of America Plaza Companion Loan
Securities, would be qualified, downgraded or withdrawn by such Rating Agency,
as a result of such waiver.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be assumed or transferred without the consent of the
mortgagee provided that certain conditions are satisfied, then for so long as
such Mortgage Loan or Companion Loan is being serviced under this Agreement, the
Special Servicer, with respect to all Specially Serviced Mortgage Loans, on
behalf of the Trustee as the mortgagee of record, shall determine in accordance
with the Servicing Standards whether such conditions have been satisfied, or,
with respect to any Non-Specially Serviced Mortgage Loan which does not allow
the mortgagee discretion in approving a transfer or assumption or allow for
discretion in determining whether conditions to a transfer or assumption have
been satisfied, the Master Servicer, on behalf of the Trustee as mortgagee of
record, shall make such determination with respect to whether such conditions
have been satisfied.
(b) As to each Mortgage Loan and Companion Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property
or equity interests in the Mortgagor or principals of the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan and Companion Loan is serviced under
this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) any right
it may have with respect to such Mortgage Loan or Companion Loan (x) to
accelerate the payments thereon or (y) to withhold its consent, provided that,
(i) (a) with respect to all Non-Specially Serviced Mortgage Loans, the Master
Servicer has made a recommendation and obtained the prior written consent of the
Special Servicer, which consent shall be deemed given 15 Business Days after
receipt (unless earlier objected to) by the Special Servicer from the Master
Servicer of the Master Servicer's analysis and recommendation with respect to
such waiver or exercise of such right together with such other information
reasonably required by the Special Servicer and (b) the Master Servicer or the
Special Servicer, as the case may be, has obtained (i) the prior written consent
of the Directing Certificateholder, which consent shall be deemed given 10
Business Days after receipt by the Directing Certificateholder of the Master
Servicer's and/or Special Servicer's, as applicable, written analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Directing Certificateholder, and (ii) from each
Rating Agency a confirmation that such waiver would not result in the downgrade,
withdrawal or qualification of the then-current ratings on any Class of
outstanding Certificates or any class of Bank of America Plaza Companion Loan
Securities if such Mortgage Loan (1) (together with any other Mortgage Loans
cross-collateralized with such Mortgage Loan) has an outstanding principal
balance that is greater than or equal to 2% of the Stated Principal Balance of
the outstanding Mortgage Loans or (2) has an LTV Ratio (including existing and
proposed debt) greater than 85% (including any proposed debt) or (3) a Debt
Service Coverage Ratio less than 1.20x (in each case, determined based upon the
aggregate of the Stated Principal Balance of the Mortgage Loan and the principal
amount of the proposed additional loan) or (4) is one of the ten (10) largest
Mortgage Loans (by Stated Principal Balance) or (5) has a Stated Principal
Balance over $20,000,000.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be further encumbered without the consent of the
mortgagee provided that certain conditions are satisfied and there is no lender
discretion with respect to the satisfaction of such conditions, then for so long
as such Mortgage Loan or Companion Loan is being serviced under this Agreement,
the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
determine whether such conditions have been satisfied, or, with respect to all
Non-Specially Serviced Mortgage Loans, the Master Servicer, on behalf of the
Trustee as mortgagee of record, shall make such determination with respect to
whether such conditions have been satisfied.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master Servicer nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Master Servicer and the Special Servicer shall each provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the other and each
Rating Agency with respect to each Mortgage Loan. To the extent not previously
provided, the Master Servicer shall provide copies of any waivers it effects
pursuant to Section 3.08(a) or (b) to the Special Servicer and each Rating
Agency with respect to each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Master Servicer may with respect to Non-Specially Serviced
Mortgage Loans, without any Directing Certificateholder approval, Rating Agency
confirmation or Special Servicer approval (provided the Master Servicer delivers
notice thereof to the Special Servicer and Directing Certificateholder, except
to the extent that the Special Servicer or the Directing Certificateholder, as
the case may be, notifies the Master Servicer that such party does not desire to
receive copies of such items):
(i) approve routine leasing activity with respect to: (1)
leases for properties for less than the lesser of (a) 15,000 square
feet and (b) 20% of the related Mortgaged Property; provided that
(1) no subordination, non-disturbance and attornment agreement (an
"SNDA") exists with respect to such lease and (2) no such lease is a
Ground Lease; and provided further that the Master Servicer shall
not grant or approve (but shall forward to the Special Servicer for
its approval) any requests for (or any waiver, consent, approval,
amendment or modification in connection with) an SNDA or approval of
a lease that contains an SNDA;
(ii) approve annual budgets for the related Mortgaged
Property; provided that no such budget (1) relates to a fiscal year
in which an anticipated repayment date occurs, (2) provides for the
payment of operating expenses in an amount equal to more than 110%
of the amounts budgeted therefor for the prior year or (3) provides
for the payment of any material expenses to any affiliate of the
Mortgagor (other than the payment of a management fee to any
property manager if such management fee is no more than the
management fee in effect on the Cut-off Date);
(iii) subject to other restrictions herein regarding Principal
Prepayments, waive any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(iv) with respect to any non-Specially Serviced Mortgage Loans
(or serviced Companion Loans), the Master Servicer may (without the
consent of the Special Servicer) grant a Mortgagor's request for
consent to subject the related Mortgaged Property to an easement,
right-of-way or similar agreement for utilities, access, parking,
public improvements or another similar purpose and may consent to
subordination of the related Mortgage Loan(s) (or serviced Companion
Loan(s)) to such easement, right-of-way or similar agreement;
provided that the Master Servicer shall have determined (i) in
accordance with the Servicing Standard that such easement,
right-of-way or similar agreement will not materially interfere with
the then-current use of the related Mortgaged Property or the
security intended to be provided by such Mortgage and will not
materially or adversely affect the value of such Mortgaged Property
and (ii) that the Upper-Tier REMIC or the Lower-Tier REMIC will not
fail to qualify as a REMIC as a result thereof and that no tax on
"prohibited transactions" or "contributions" after the Closing Date
would be imposed on the Upper-Tier REMIC or the Lower-Tier REMIC as
a result thereof;
(v) consent to changing the property manager at the request
of the Mortgagor, for so long as, (A) the successor property manager
is not affiliated with the Mortgagor and is a reputable manager of
similar properties and (B) the related Mortgage Loan has an unpaid
principal balance of less than $5,000,000; and
(vi) waive any Penalty Charges on any non-Specially Serviced
Mortgage Loan in connection with any delinquent payment on such
Mortgage Loan;
provided that 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 or Companion Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
cause either the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a
REMIC, (y) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standards, and (z) agreeing to such modification,
waiver or amendment shall not violate the terms, provisions or limitations of
this Agreement or any Intercreditor Agreement; provided, further, that if in the
reasonable judgment of the Master Servicer any request by a Mortgagor for
consent of the mortgagee or any modification, waiver or amendment in connection
with an assumption transaction of a non-Specially Serviced Mortgage Loan
contemplated by this Section 3.08 is not included within the scope of this
clause (e), the Master Servicer shall forward the Mortgagor's request to the
Special Servicer for its approval; provided, further, that with respect to any
non-Specially Serviced Mortgage Loan and set forth in Schedule 4 hereto any
request for the disbursement of any earnouts or holdback amounts with respect to
such non-Specially Serviced Mortgage Loan, it being understood and agreed that
for purposes of this Agreement, the disbursement of earnouts or holdback amounts
shall mean the disbursement or funding to a Mortgagor of previously unfunded,
escrowed or otherwise reserved portions of the loan proceeds of the applicable
non-Specially Serviced Mortgage Loan, the Master Servicer shall forward the
Mortgagor's request to the Special Servicer for processing (which request shall
be deemed approved if the request is not denied by the Special Servicer in
writing to the Master Servicer within ten (10) Business Days of the Special
Servicer's receipt of such request); provided, further, that if in the
reasonable judgment of the Master Servicer any request by a Mortgagor for
consent of the Mortgagee or any modification, waiver or amendment is not
included within the scope of this clause (e), the Special Servicer shall be
responsible for such request. The foregoing is intended to be an itemization of
certain actions the Master Servicer may take without having to obtain the
approval of any other party and is not intended to limit the responsibilities of
the Master Servicer hereunder.
(f) Notwithstanding any other provision of this Agreement, the
Master Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause without the consent of the Special
Servicer and the Special Servicer may not waive its rights or grant its consent
under any "due-on-sale" or "due-on-encumbrance" clause relating to a
Non-Specially Serviced Mortgage Loan or relating to any Specially Serviced
Mortgage Loan without the consent of the Directing Certificateholder. The
Directing Certificateholder shall have 10 Business Days after receipt of notice
along with the Master Servicer's or Special Servicer's recommendation and
analysis with respect to such waiver and any additional information the
Directing Certificateholder may reasonably request from the Special Servicer of
a proposed waiver or consent under any "due on sale" or "due on encumbrance"
clause in which to grant or withhold its consent (provided that if the Special
Servicer fails to receive a response to such notice from the Directing
Certificateholder in writing within such period, then the Directing
Certificateholder shall be deemed to have consented to such proposed waiver or
consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.29, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
Master Servicer or Special Servicer shall not be required to make a Servicing
Advance and expend funds toward the restoration of such property unless the
Special Servicer has determined in its reasonable discretion that such
restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to the Master Servicer for
such Servicing Advance, and the Master Servicer or Special Servicer has not
determined that such Servicing Advance together with accrued and unpaid interest
thereon would constitute a Nonrecoverable Advance. The costs and expenses
incurred by the Special Servicer in any such proceedings shall be advanced by
the Master Servicer, provided that, in each case, such cost or expense would
not, if incurred, constitute a Nonrecoverable Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Master
Servicer or 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 the Master Servicer
or the Special Servicer in its reasonable judgment taking into account the
factors described in Section 3.18(b) and the results of any Appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standards. If and when the Special Servicer or the
Master Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a Defaulted Mortgage Loan
or defaulted Companion Loan, whether for purposes of bidding at foreclosure or
otherwise, the Special Servicer or the Master Servicer, as the case may be, is
authorized to have an Appraisal performed with respect to such property by an
Independent MAI-designated appraiser the cost of which shall be paid by the
Master Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that the holding of such personal property by the
Trust Fund (to the extent not allocable to a Companion Loan) will not
cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier
REMIC under the REMIC Provisions or cause the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.29, neither the Master Servicer nor the Special Servicer shall, on
behalf of the Trustee, obtain title to a Mortgaged Property 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/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Master Servicer as a Servicing Advance and the cost of any remedial, corrective
or other further action contemplated by clause (i) and/or clause (ii) of the
preceding sentence shall be paid by the Master Servicer as a Servicing Advance,
unless it is a Nonrecoverable Servicing Advance (in which case it shall be an
expense of the Trust Fund, in the case of the Bank of America Plaza Whole Loan,
and may be withdrawn in accordance with the Bank of America Plaza Intercreditor
Agreement by the Master Servicer from the Certificate Account, including from
the sub-account relating to the Bank of America Plaza Companion Note (such
withdrawal to be made from amounts on deposit therein that are otherwise payable
on or allocable to the Bank of America Plaza Note); and if any such
Environmental Assessment so warrants, the Special Servicer shall (except with
respect to any Companion Loan and any Environmental Assessment ordered after the
related AB Mortgage Loan has been paid in full), at the expense of the Trust
Fund, perform such additional environmental testing as it deems necessary and
prudent to determine whether the conditions described in clauses (i) and (ii) of
the preceding sentence have been satisfied. With respect to Non-Specially
Serviced Mortgage Loans, the Master Servicer and, with respect to Specially
Serviced Mortgage Loans, the Special Servicer shall review and be familiar with
the terms and conditions relating to enforcing claims and shall monitor the
dates by which any claim or action must be taken (including delivering any
notices to the insurer and using reasonable efforts to perform any actions
required under such policy) under each environmental insurance policy in effect
and obtained on behalf of the mortgagee to receive the maximum proceeds
available under such policy for the benefit of the Certificateholders and the
Trustee (as holder of the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 6 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized (with the consent of the Directing
Certificateholder) at such time as it deems appropriate to release such
Mortgaged Property from the lien of the related Mortgage, provided that, if such
Mortgage Loan has a then outstanding principal balance of greater than
$1,000,000, then prior to the release of the related Mortgaged Property from the
lien of the related Mortgage, (i) the Special Servicer shall have notified the
Rating Agencies, the Trustee, the Paying Agent, the Master Servicer and the
Directing Certificateholder in writing of its intention to so release such
Mortgaged Property and the bases for such intention, (ii) the Paying Agent shall
have notified the Certificateholders in writing of the Special Servicer's
intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Paying Agent's distributing such notice
(failure to respond by the end of such 30-day period being deemed consent), and
(iv) the Special Servicer shall have received written confirmation from each
Rating Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates or
the Bank of America Plaza Companion Loan Securities. To the extent any fee
charged by each Rating Agency in connection with rendering such written
confirmation is not paid by the related Mortgagor, such fee is to be an expense
of the Trust; provided that the Master Servicer or Special Servicer, as
applicable, shall use commercially reasonable efforts to collect such fee from
the Mortgagor to the extent permitted under the related Mortgage Loan documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder, each Rating Agency and the Master Servicer monthly regarding
any actions taken by the Special Servicer with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan or defaulted Companion Loan as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of both such conditions, repurchase of the related Mortgage Loan by
the applicable Mortgage Loan Seller or release of the lien of the related
Mortgage on such Mortgaged Property. The Paying Agent shall forward, or cause to
be forwarded all such reports to each Rating Agency and the Certificateholders
upon request.
(f) The Special Servicer shall notify the Master Servicer of any
abandoned and/or foreclosed properties which require reporting to the Internal
Revenue Service and shall provide the Master Servicer with all information
regarding forgiveness of indebtedness and required to be reported with respect
to any Mortgage Loan or Companion Loan which is abandoned or foreclosed and the
Master Servicer shall report to the Internal Revenue Service and the related
Mortgagor, in the manner required by applicable law, such information and the
Master Servicer shall report, via Form 1099C (or any successor form), all
forgiveness of indebtedness to the extent such information has been provided to
the Master Servicer by the Special Servicer. Upon request, the Master Servicer
shall deliver a copy of any such report to the Trustee and the Paying Agent.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Paying Agent,
the Directing Certificateholder and the Master Servicer and in no event later
than the next succeeding P&I Advance Determination Date.
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 signed by 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 Certificate Account pursuant to Section 3.04(a) or remitted to
the Master Servicer to enable such deposit, have been or will be so deposited.
Within seven Business Days (or within such shorter period as release can
reasonably be accomplished if the Master Servicer or the Special Servicer
notifies the Trustee of an exigency) of receipt of such notice and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as the case may be,
provided, however, that in the case of the payment in full of the Bank of
America Plaza Mortgage Loan, the Mortgage Loan File with respect to the Bank of
America Plaza Whole Loan shall not be released by the Trustee (and the Master
Servicer or Special Servicer shall not request such release) unless such
Mortgage Loan that is paid in full is the sole remaining portion of the Bank of
America Plaza Whole Loan in the Trust Fund. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (and any related Companion Loan), the Master Servicer or
the Special Servicer shall deliver to the Trustee a Request for Release signed
by a Servicing Officer. Upon receipt of the foregoing, the Trustee shall deliver
or cause the related Custodian to 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 such Mortgage File or such document to the Trustee
or the related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be, stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Trustee to the Master Servicer or the Special Servicer (or a designee), as the
case may be, with the original being released upon termination of the Trust.
(c) Within seven 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 foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee 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 and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, the Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan and REO
Loan (including Specially Serviced Mortgage Loans). As to each Mortgage Loan,
Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at
the Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan, Companion Loan or REO Loan, as the case
may be, and in the same manner as interest is calculated on such Mortgage Loan,
Companion Loan or REO Loan, as the case may be, and, in connection with any
partial month interest payment, for the same period respecting which any related
interest payment due on such Mortgage Loan or Companion Loan or deemed to be due
on such REO Loan is computed. The Servicing Fee with respect to any Mortgage
Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof, except that if such asset is part of the Bank of
America Plaza Whole Loan and the Bank of America Plaza Whole Loan continues to
be serviced and administered under this Agreement notwithstanding such
Liquidation Event, then the applicable Servicing Fee shall continue to accrue
and be payable as if such Liquidation Event did not occur. The Servicing Fee
shall be payable monthly, on a loan-by-loan basis, from payments of interest on
each Mortgage Loan, Companion Loan and REO Revenues allocable as interest on
each REO Loan, and as otherwise provided by Section 3.05(a). The Master Servicer
shall be entitled to recover unpaid Servicing Fees in respect of any Mortgage
Loan, Companion Loan or REO Loan out of that portion of related payments,
Insurance and Condemnation Proceeds, Liquidation Proceeds and REO Revenues (in
the case of an REO Loan) allocable as recoveries of interest, to the extent
permitted by Section 3.05(a). Except as set forth in the third paragraph of this
Section 3.11(a) and Section 7.01(c), the right to receive the Servicing Fee may
not be transferred in whole or in part (except in connection with a transfer of
all of the Master Servicer's duties and obligations hereunder to a successor
servicer in accordance with the terms hereof).
The Master Servicer shall be entitled to retain, and shall not be
required to deposit in the Certificate Account pursuant to Section 3.04(a),
additional servicing compensation in the form of (i) 100% of modification,
waiver and consent fees pursuant to Section 3.08(e), provided the consent of the
Special Servicer is not required to take such action, (ii) 100% of all
defeasance fees and 50% of application fees received on Non-Specially Serviced
Mortgage Loans and (iii) 50% of all assumption, extension, earnout, waiver and
consent fees pursuant to Section 3.08(a) and Section 3.08(b) on the
Non-Specially Serviced Mortgage Loans, to the extent that such fees are paid by
the Mortgagor and for which the Special Servicer's consent or approval is
required on the Non-Specially Serviced Mortgage Loans and only to the extent
that all amounts then due and payable with respect to the related Mortgage Loan
have been paid. In addition, the Master Servicer shall be entitled to retain as
additional servicing compensation any charges for processing Mortgagor requests,
beneficiary statements or demands, reasonable and customary consent fees, fees
in connection with defeasance, if any, and other customary charges, and amounts
collected for checks returned for insufficient funds, in each case only to the
extent actually paid by the related Mortgagor and shall not be required to
deposit such amounts in the Certificate Account or the Companion Distribution
Account pursuant to Section 3.04(a). Subject to Section 3.11(d), the Master
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) Penalty Charges to the extent provided in Section 3.11(d), (ii) interest
or other income earned on deposits relating to the Trust Fund in the Certificate
Account or the Companion Distribution Account in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
such account for the period from and including the prior Distribution Date to
and including the P&I Advance Date related to such Distribution Date), (iii)
interest or other income earned on deposits in the Servicing Account which are
not required by applicable law or the related Mortgage Loan to be paid to the
Mortgagor and (iv) the difference, if positive, between Prepayment Interest
Excess and Prepayment Shortfalls collected on the Mortgage Loans during the
related Due Period to the extent not required to be paid as Compensating
Interest Payments. The Master Servicer shall be required to pay out of its own
funds all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket Insurance Policy
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Certificate Account and the
Master Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
or REO Loan, as the case may be, and in the same manner as interest is
calculated on the Specially Serviced Mortgage Loans or REO Loans, as the case
may be, and, in connection with any partial month interest payment, for the same
period respecting which any related interest payment due on such Specially
Serviced Mortgage Loan or deemed to be due on such REO Loan is computed. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, in
accordance with the provisions of Section 3.05(a). The right to receive the
Special Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer's responsibilities
and obligations under this Agreement.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and all defeasance fees, in each case, received on any
Specially Serviced Mortgage Loans to the extent such fees are paid by the
Mortgagor, (ii) 50% of all application fees received on Non-Specially Serviced
Mortgage Loans and (iii) 50% of all assumption, extension, material
modification, waiver, consent and earnout fees pursuant to Section 3.08(a) and
3.08(b) or 3.20 received with respect to all Non-Specially Serviced Mortgage
Loans and for which the Special Servicer's consent or approval is required,
shall be promptly paid to the Special Servicer by the Master Servicer to the
extent such fees are paid by the Mortgagor and shall not be required to be
deposited in the applicable Certificate Account pursuant to Section 3.04(a). The
Special Servicer shall also be entitled to additional servicing compensation in
the form of a Workout Fee with respect to each Corrected Mortgage Loan as a
result of a Servicing Transfer Event under clause (x) of the definition thereof
that did not result in an actual (as opposed to imminent) Event of Default) at
the Workout Fee Rate on such Mortgage Loan for so long as it remains a Corrected
Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will
cease to be payable if such loan again becomes a Specially Serviced Mortgage
Loan; provided that a new Workout Fee will become payable if and when such
Specially Serviced Mortgage Loan again becomes a Corrected Mortgage Loan. If the
Special Servicer is terminated (other than for cause) or resigns, it shall
retain the right to receive any and all Workout Fees payable in respect of
Mortgage Loans or Companion Loans that became Corrected Mortgage Loans prior to
the time of that termination or resignation except the Workout Fees will no
longer be payable if the Mortgage Loan subsequently becomes a Specially Serviced
Mortgage Loan. If the Special Servicer resigns or is terminated (other than for
cause), it will receive any Workout Fees payable on Specially Serviced Mortgage
Loans for which the resigning or terminated Special Servicer had cured the event
of default through a modification, restructuring or workout negotiated by the
Special Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The successor Special Servicer will not be entitled to any portion of
such Workout Fees. The Special Servicer will not be entitled to receive any
Workout Fees after termination for cause. A Liquidation Fee will be payable with
respect to each Specially Serviced Mortgage Loan or REO Property as to which the
Special Servicer receives any Liquidation Proceeds or Insurance and Condemnation
Proceeds subject to the exceptions set forth in the definition of Liquidation
Fee (such Liquidation Fee to be paid out of such Liquidation Proceeds, Insurance
and Condemnation Proceeds). If, however, Liquidation Proceeds or Insurance and
Condemnation Proceeds are received with respect to any Corrected Mortgage Loan
and the Special Servicer is properly entitled to a Workout Fee, such Workout Fee
will be payable based on and out of the portion of such Liquidation Proceeds and
Insurance and Condemnation Proceeds that constitute principal and/or interest on
such Mortgage Loan. Notwithstanding anything herein to the contrary, the Special
Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee,
but not both, with respect to proceeds on any Mortgage Loan. Notwithstanding the
foregoing, with respect to any Companion Loan, the Liquidation Fee, Workout Fee
and Special Servicing Fees, if any, will be computed as provided in the related
Intercreditor Agreement or to the extent such Intercreditor Agreement is silent,
as provided herein as though such Companion Loan were a Mortgage Loan. Subject
to Section 3.11(d), the Special Servicer will also be entitled to additional
fees in the form of Penalty Charges to the extent provided in subsection (d).
The Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against hazard
losses pursuant to Section 3.07), if and to the extent such expenses are not
expressly payable directly out of the Certificate Account or the REO Account,
and the Special Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied (in such order) to reimburse
(i) the Master Servicer or the Trustee for interest on Advances on such Mortgage
Loan due on such Distribution Date, (ii) the Trust Fund for all interest on
Advances previously paid to the Master Servicer or the Trustee pursuant to
Section 3.05(a)(vi) hereof with respect to such Mortgage Loan and (iii) the
Trust Fund for costs of all additional Trust Fund expenses (other than Special
Servicing Fees, Workout Fees and Liquidation Fees), including without
limitation, inspections by the Special Servicer and all unpaid Advances incurred
since the Closing Date with respect to such Mortgage Loan; Penalty Charges
remaining thereafter shall be distributed to the Master Servicer, if and to the
extent collected while the Mortgage Loan was a Non-Specially Serviced Mortgage
Loan and to the Special Servicer if and to the extent collected on such Mortgage
Loan during the period such Mortgage Loan was a Specially Serviced Mortgage
Loan. Notwithstanding the foregoing, Penalty Charges with respect to any
Companion Loan will be allocated pursuant to the applicable Intercreditor
Agreement after payment of all related Advances and interest thereon.
Notwithstanding the foregoing, with respect to any Bank of America
Plaza Remittance Date, any and all Penalty Charges that are actually collected
on the Bank of America Plaza Whole Loan since the prior Bank of America Plaza
Remittance Date, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Penalty Charges:
first, toward the payment of or reimbursement for accrued and unpaid
interest on (i) any presently outstanding Servicing Advances made with
respect to the Bank of America Plaza Whole Loan, and (ii) any previously
paid Servicing Advances made with respect to the Bank of America Plaza
Whole Loan to the extent that the advance interest has been paid from a
source other than Penalty Charges;
second, toward the payment of or reimbursement for accrued and
unpaid interest on (i) any presently outstanding principal and interest
advances (including P&I Advances hereunder and any advances comparable to
P&I Advances made under a securitization agreement governing the Bank of
America Plaza Companion Note) made with respect to the Bank of America
Plaza Mortgage Loan and/or the Bank of America Plaza Companion Note, and
(ii) any previously paid principal and interest advances (including P&I
Advances hereunder and any advances comparable to P&I Advances made under
a securitization agreement governing the Bank of America Plaza Companion
Note) made with respect to the Bank of America Plaza Mortgage Loan and/or
the Bank of America Plaza Companion Note, to the extent that the advance
interest has been paid from a source other than Penalty Charges;
third, toward the payment of or reimbursement for (i) any presently
outstanding expenses payable under the Bank of America Plaza Intercreditor
Agreement, other than Special Servicing Fees, and (ii) any previously paid
expenses payable under the Bank of America Plaza Intercreditor Agreement,
other than Special Servicing Fees, to the extent that the expense has been
paid from a source other than Penalty Charges; and
fourth, to pay any remaining portion of such Penalty Charges with
respect to the Bank of America Plaza Whole Loan as additional servicing
compensation to the Master Servicer, to the extent received, if and to the
extent collected while the Bank of America Plaza Whole Loan was a
Non-Specially Serviced Mortgage Loan, and to the Special Servicer, to the
extent received, if and to the extent collected while the Bank of America
Plaza Whole Loan was a Specially Serviced Mortgage Loan.
As among the various holders of the Bank of America Plaza Mortgage
Loan and the Bank of America Plaza Companion Note, the payments and
reimbursements under each relevant clause shall be made pro rata among those
holders according to the respective amounts described in that clause that are
attributable to each of them.
Section 3.12 Inspections; Collection of Financial Statements. (a)
The Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
securing a Mortgage Note that it is responsible for servicing hereunder with a
stated Principal Balance of (i) $2,000,000 or more at least once every 12 months
and (ii) less than $2,000,000 at least once every 24 months, in each case
commencing in the calendar year 2007 (and each Mortgaged Property shall be
inspected on or prior to November 2007); provided, however, that if a physical
inspection has been performed by the Special Servicer in the previous 12 months
and the Master Servicer has no knowledge of a material change in the Mortgaged
Property since such physical inspection, the Master Servicer will not be
required to perform or cause to be performed, such physical inspection;
provided, further, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect or
cause to be inspected the related Mortgaged Property as soon as practicable
after such Mortgage Loan becomes a Specially Serviced Mortgage Loan and annually
thereafter for so long as such Mortgage Loan remains a Specially Serviced
Mortgage Loan. The cost of such inspection by the Special Servicer shall be an
expense of the Trust Fund, and to the extent not paid by the related Mortgagor
reimbursed first from Penalty Charges (but with respect to the Bank of America
Plaza Mortgage Loan, only from amounts available for such purpose under the Bank
of America Plaza Intercreditor Agreement) actually received from the related
Mortgagor and then from the Certificate Account pursuant to Section 3.05(a)(ii).
The Special Servicer or the Master Servicer, as applicable, shall prepare or
cause to be prepared a written report of each such inspection detailing the
condition of and any damage to the Mortgaged Property to the extent evident from
the inspection and specifying the existence of (i) any vacancy in the Mortgaged
Property that the preparer of such report deems material, (ii) any sale,
transfer or abandonment of the Mortgaged Property of which the preparer of such
report has knowledge or that is evident from the inspection, (iii) any adverse
change in the condition of the Mortgaged Property of which the preparer of such
report has knowledge or that is evident from the inspection, and that the
preparer of such report deems material, (iv) any visible material waste
committed on the Mortgaged Property of which the preparer of such report has
knowledge or that is evident from the inspection and (v) photographs of each
inspected Mortgaged Property. The Special Servicer and the Master Servicer shall
deliver a copy of each such report prepared by the Special Servicer and the
Master Servicer, respectively, to the other, to the Directing Certificateholder
and, upon request, to the Trustee, the Paying Agent and the Rating Agencies
within five (5) Business Days after request (or if such request is received
before such report is completed, within five (5) Business Days after completion
of such report). The Paying Agent shall deliver a copy of each such report to
the Controlling Class Certificateholder upon request and to each Holder of a
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificate, upon request (which such request may state
that such items be delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loans, shall make reasonable efforts to collect promptly from
each Mortgagor annual operating statements and rent rolls of the related
Mortgaged Property, financial statements of such Mortgagor and any other reports
required to be delivered under the terms of the Mortgage Loans (and each
Companion Loan), if delivery of such items is required pursuant to the terms of
the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loan shall make reasonable efforts to collect promptly from
each related Mortgagor quarterly and annual operating statements, budgets and
rent rolls of the related Mortgaged Property, and the quarterly and annual
financial statements of such Mortgagor, whether or not delivery of such items is
required pursuant to the terms of the related Mortgage. The Master Servicer and
the Special Servicer shall not be required to request such statements more than
once if the related Mortgagor is not required to deliver such statements
pursuant to the terms of the Mortgage Loan documents. 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 all such items to the Master Servicer within five (5) days of receipt
and the Master Servicer and the Special Servicer each shall deliver copies of
all the foregoing items so collected thereby to the Trustee, the Paying Agent,
the Directing Certificateholder and, upon request, to the Depositor and each
other, in each case within 60 days of its receipt thereof, but in no event, in
the case of annual statements, later than June 30 of each year commencing June
30, 2007. The Paying Agent shall, upon request, deliver copies (in hard copy,
electronic format or make available on its internet website) of the foregoing
items to the Underwriters, the Trustee, the Rating Agencies, the Controlling
Class Certificateholders, the Mortgage Loan Sellers or, to the extent the
Certificate Registrar has confirmed the Ownership Interest in Certificates held
thereby, any Certificate Owner, a copy (or image in suitable electronic media)
of each such report prepared by the Master Servicer or the Special Servicer.
Within 45 days after receipt by the Master Servicer, with respect to
Non-Specially Serviced Mortgage Loans it is responsible for servicing hereunder,
or the Special Servicer with respect to Specially Serviced Mortgage Loans of any
annual operating statements or rent rolls with respect to any Mortgaged Property
or REO Property, or if such date would be after June 30 of any year, then within
30 days after receipt, such Master Servicer shall, based upon such operating
statements or rent rolls received, prepare (or, if previously prepared, update)
the analysis of operations and the CMSA NOI Adjustment Worksheet and the CMSA
Operating Statement Analysis Report. Upon the occurrence and continuation of a
Servicing Transfer Event, the Master Servicer shall provide the Special Servicer
with all prior CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets for the related Mortgage Loan (including underwritten figures), and
the Special Servicer's obligations hereunder shall be subject to its having
received all such reports. The Master Servicer and Special Servicer shall
forward to the other and the Directing Certificateholder electronically monthly
all operating statements and rent rolls received from any Mortgagor from the
prior month. All CMSA Operating Statement Analysis Reports and CMSA NOI
Adjustment Worksheets shall be maintained by the Master Servicer with respect to
each Mortgaged Property and REO Property, and the Master Servicer shall forward
copies (in electronic format or make available on its internet website) thereof
and the related operating statements or rent rolls (in each case, promptly
following the initial preparation and each material revision thereof) to the
Paying Agent (in electronic format only), the Directing Certificateholder (and
with respect to any Companion Loan, the related Companion Holder) and the
Special Servicer. The Paying Agent shall, upon request and to the extent such
items have been delivered to the Paying Agent by the Master Servicer, deliver to
the Underwriters, the Rating Agencies, the Mortgage Loan Sellers, any
Certificateholder or, to the extent the Certificate Registrar has confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of such CMSA Operating Statement Analysis Report (or update thereof) and
CMSA NOI Adjustment Worksheet (or update thereof), upon written request, and the
related operating statement or rent rolls. The Master Servicer shall maintain a
CMSA Operating Statement Analysis Report and a CMSA NOI Adjustment Worksheet
with respect to each Mortgaged Property and REO Property.
(d) At or before 12:00 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 CMSA Special Servicer Loan File with
respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the information required of the Special Servicer in an electronic
format, reasonably acceptable to the Master Servicer as of the Business Day
preceding such Determination Date, which CMSA Special Servicer Loan File shall
include data, to enable the Master Servicer to produce the following CMSA
Supplemental Reports: (i) a CMSA Delinquent Loan Status Report, (ii) a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, (iii) a CMSA
REO Status Report, (iv) a CMSA Comparative Financial Status Report and (v) a
CMSA NOI Adjustment Worksheet and a CMSA Operating Statement Analysis Report, in
each case with the supporting financial statements submitted by the Mortgagor.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date beginning January 2007, the Master Servicer shall prepare (if and to the
extent necessary) and deliver or cause to be delivered in electronic format to
the Paying Agent the following reports and data files: (i) to the extent the
Master Servicer has received the CMSA Special Servicer Loan File at the time
required, the most recent CMSA Delinquent Loan Status Report, CMSA Historical
Loan Modification and Corrected Mortgage Loan Report and the CMSA REO Status
Report, (ii) CMSA Loan Setup File (with respect to the first Distribution Date),
(iii) the most recent CMSA Property File, and CMSA Comparative Financial Status
Report (in each case incorporating the data required to be included in the CMSA
Special Servicer Loan File pursuant to Section 3.12(d) by the Special Servicer
and Master Servicer), (iv) a CMSA Servicer Watch List with information that is
current as of such Determination Date, (v) CMSA Financial File, (vi) CMSA Loan
Level Reserve LOC Report, (vii) the Realized Loss Report and (viii) the CMSA
Advance Recovery Report. Not later than 2:00 p.m. (New York City time) two (2)
Business Days prior to the Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Paying Agent via electronic format the CMSA Loan
Periodic Update File. In no event shall any report described in this subsection
be required to reflect information that has not been collected by or delivered
to the Master Servicer, or any payments or collections not received by the
Master Servicer, as of the Business Day prior to the Business Day on which the
report is due.
(f) The Special Servicer shall deliver to the Master Servicer the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and the Master Servicer shall deliver to the Paying Agent the reports
and data files set forth in Section 3.12(e). The Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The Paying
Agent may, absent manifest error, conclusively rely on the reports and/or data
to be provided by the Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by the Master Servicer to the Paying
Agent pursuant to Section 3.12(e), 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(c) or Section 3.12(d) and to the
extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(c) or Section 3.12(d), the Master Servicer
shall have no obligation to provide such information or reports to the Paying
Agent until it has received the requisite information or reports from the
Special Servicer, and the Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(e) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) 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 the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
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. 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 and
the Servicing Standards. 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).
(h) Unless otherwise specifically stated herein, if the Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, the Master Servicer or the
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) except with respect to information to be provided to the Paying
Agent and the Directing Certificateholder or any Companion Holder, making such
statement, report or information available on the Master Servicer's or the
Special Servicer's internet website, unless this Agreement expressly specifies a
particular method of delivery.
Notwithstanding anything to the contrary in the foregoing, the
Master Servicer and the Special Servicer shall deliver any required statements,
reports or other information to the Trustee in an electronic format mutually
agreeable to the Trustee and the Master Servicer or the Special Servicer, as the
case may be. The Master Servicer or the Special Servicer may physically deliver
a paper copy of any such statement, report or information as a temporary measure
due to system problems, however, copies in electronic format shall follow upon
the correction of such system problems.
Section 3.13 [Reserved].
Section 3.14 [Reserved].
Section 3.15 Access to Certain Information. Each of the Master
Servicer and the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Paying Agent, the
Depositor, each Mortgage Loan Seller, each Rating Agency, the Directing
Certificateholder and any Companion Holder, and to the Master Servicer, or to
the Special Servicer, as applicable, and to the OTS, the FDIC, the Federal
Reserve Board and the supervisory agents and examiners of such boards and such
corporations, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, and to each
Holder of a Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P or Class NR Certificate, and to each Companion Holder
(solely with respect to the related AB Mortgage Loan or the Bank of America
Plaza Whole Loan), access to any documentation or information regarding the
Mortgage Loans and related Companion Loans and the Trust Fund within its control
which may be required by this Agreement or by applicable law. At the election of
the Master Servicer or the Special Servicer, such access may be afforded to such
Person identified above by the delivery of copies of information as requested by
such Person and the Master Servicer or the Special Servicer shall be permitted
to require payment (other than from the Directing Certificateholder and the
Trustee and the Paying Agent on its own behalf or on behalf of the
Certificateholders) of a sum sufficient to cover the reasonable out-of-pocket
costs incurred by it in making such copies. Such access shall (except as
described in the preceding sentence) be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Master Servicer or the Special Servicer, as the case may be, designated
by it; provided, however, that Certificateholders and Certificate Owners shall
be required to pay their own photocopying costs and execute a reasonable and
customary confidentiality agreement with respect to such information. The
failure of the Master Servicer or the Special Servicer to provide access as
provided in this Section 3.15 as a result of a confidentiality obligation shall
not constitute a breach of this Section 3.15; provided that nothing in this
paragraph shall provide a basis for not providing to the Directing
Certificateholder any information specifically required to be delivered to it
under the terms of this Agreement. The Master Servicer and the Special Servicer
may each deny any of the foregoing persons access to confidential information or
any intellectual property which the Master Servicer or the Special Servicer is
restricted by license or contract from disclosing. In connection with providing
access to information pursuant to this Section 3.15 to parties other than the
Trustee, the Paying Agent or the Directing Certificateholder, the Master
Servicer and the Special Servicer may each (i) 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); (ii) affix to any
information provided by it a reasonable statement regarding securities law
restrictions on such information and/or condition access to information on the
execution of a reasonable confidentiality agreement; (iii) withhold access to
confidential information or any intellectual property; and (iv) withhold access
to items of information contained in the Servicing File for any Mortgage Loan if
the disclosure of such items is prohibited by applicable law or the provisions
of any related Mortgage Loan documents or would constitute a waiver of the
attorney-client privilege. Notwithstanding any provision of this Agreement to
the contrary, the failure of the Master Servicer or the Special Servicer to
disclose any information otherwise required to be disclosed by it pursuant to
this Agreement shall not constitute a breach of this Agreement to the extent
that the Master Servicer or the Special Servicer, as the case may be,
determines, in its reasonable good faith judgment consistent with the applicable
Servicing Standards, that such disclosure would violate applicable law or any
provision of a Mortgage Loan document or Companion Loan document prohibiting
disclosure of information with respect to the Mortgage Loans or Companion Loans
or the Mortgaged Properties, constitute a waiver of the attorney-client
privilege on behalf of the Trust or the Trust Fund or otherwise materially harm
the Trust or the Trust Fund.
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 a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. The Special Servicer, on behalf
of the Trust Fund and, if applicable, the Bank of America Plaza Companion
Noteholder, shall sell any REO Property prior to the close of the third calendar
year following the year in which the Trust Fund acquires ownership of such REO
Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) is granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee, the Paying
Agent and the Master Servicer an Opinion of Counsel, addressed to the Trustee,
the Paying Agent and the Master Servicer, to the effect that the holding by the
Trust Fund of such REO Property subsequent to the close of the third calendar
year following the year in which such acquisition occurred will not cause the
imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC or cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any
time that any Uncertificated Lower-Tier Interest or Certificate is outstanding.
If the Special Servicer is granted the REO Extension contemplated by clause (i)
of the immediately preceding sentence or obtains the Opinion of Counsel
contemplated by clause (ii) of the immediately preceding sentence, the Special
Servicer shall sell such REO Property within such longer period as is permitted
by such REO Extension or such Opinion of Counsel, as the case may be. Any
expense incurred by the Special Servicer in connection with its being granted
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall be an expense of the Trust Fund payable out of the
Certificate Account pursuant to Section 3.05(a).
(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 REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Uncertificated Lower-Tier Interests),
for the retention of revenues and other proceeds derived from each REO Property.
The REO Account shall be an Eligible Account. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within 1 Business Day
after receipt, all REO Revenues, Insurance and 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 give notice to the Trustee and the Master
Servicer 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, insuring, 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. On or prior to each
Determination Date (or with respect to the Bank of America Plaza Companion Note,
on each Bank of America Plaza Remittance Date), the Special Servicer shall
withdraw from the REO Account and remit to the Master Servicer, which shall
deposit into the Certificate Account (or such subaccount of the Certificate
Account for each Companion Loan, as applicable), the aggregate of all amounts
received in respect of each REO Property during the most recently ended Due
Period, net of (i) any withdrawals made out of such amounts pursuant to the
preceding sentence and (ii) Net Investment Earnings on amounts on deposit in the
REO Account; provided, however, that the Special Servicer may retain in such REO
Account, in accordance with the Servicing Standards, such portion of such
balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, on or prior to each
Determination Date (or with respect to the Bank of America Plaza Companion Note,
on each Bank of America Plaza Remittance Date), the Special Servicer shall
provide the Master Servicer with a written accounting of amounts remitted to the
Master Servicer for deposit in the Certificate Account, as applicable, on such
date. The Master Servicer shall apply all such amounts as instructed by the
Special Servicer on the Determination Date (or with respect to the Bank of
America Plaza Companion Note, on each Bank of America Plaza Remittance Date) for
the related Distribution Date.
(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 (c).
Section 3.17 Management of REO Property. (a) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Uncertificated Lower-Tier Interests) solely for the purpose of its timely
disposition and sale 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 or result in the receipt by the Trust Fund or the Bank of America Plaza
Companion Noteholder of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC
Event. Subject to the foregoing, however, the Special Servicer shall have full
power and authority to do any and all things in connection therewith as are in
the best interests of and for the benefit of the Certificateholders (and, in the
case of each Loan Pair, the related Companion Holder(s)) and the Trustee (as
holder of the Uncertificated Lower-Tier Interests) all as a collective whole (as
determined by the Special Servicer in its reasonable judgment in accordance with
the Servicing Standards). Subject to this Section 3.17, the Special Servicer may
allow the Trust Fund or any commercial mortgage securitization that holds the
Bank of America Plaza Companion Note to earn "net income from foreclosure
property" within the meaning of Section 860G(d) of the Code if it determines
that earning such income is in the best interests of Certificateholders and, if
applicable, any related Companion Holder(s) on a net after-tax basis as compared
with net leasing such REO Property or operating such REO Property on a different
basis. In connection therewith, the Special Servicer shall deposit or cause to
be deposited on a daily basis (and in no event later than 1 Business Day
following receipt of such funds) in the applicable REO Account all revenues
received by it with respect to each REO Property and the related REO Loan, and
shall withdraw from the REO Account, to the extent of amounts on deposit therein
with respect to such REO Property, funds necessary for the proper operation,
management, leasing and maintenance of such REO Property, including, without
limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer (subject to
receiving notice from the Special Servicer in accordance with the procedures set
forth elsewhere in this Agreement) shall advance from its own funds such amount
as is necessary for such purposes unless (as evidenced by an Officer's
Certificate delivered to the Trustee, the Depositor, the Paying Agent and the
Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) 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 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) 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) 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 for the benefit of the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, 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 an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Master Servicer a statement prepared by the
Special Servicer setting forth the amount of net income or net loss, as
determined for federal income tax purposes, resulting from the operation and
management of a trade or business on, the furnishing or rendering of a
non-customary service to the tenants of, or the receipt of any other amount not
constituting Rents from Real Property in respect of, any REO Property in
accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a Specially
Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan, the Special
Servicer shall order an Appraisal (but shall not be required to be received) and
within thirty (30) days of receipt of the Appraisal shall determine the fair
value of such Defaulted Mortgage Loan in accordance with the Servicing
Standards; provided, however, that such determination shall be made without
taking into account any effect the restrictions on the sale of such Mortgage
Loan contained herein may have on the value of such Defaulted Mortgage Loan;
provided, further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer may, from time to time, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with a review of such
circumstances and new information in accordance with the Servicing Standards,
conducted not less often than every 90 days. The Special Servicer shall notify
the Trustee, the Master Servicer, the Paying Agent and the Certificateholder
that owns the largest aggregate Certificate Balance of the Controlling Class
(the "Controlling Class Option Holder") and the Bank of America Plaza Companion
Noteholder (solely as it relates to the Bank of America Plaza Whole Loan)
promptly upon its making a fair value determination and any subsequent
adjustment thereto. The Special Servicer shall also deliver to the Master
Servicer, the Rating Agencies and the Controlling Class Option Holder and the
Bank of America Plaza Companion Noteholder (solely as it relates to the Bank of
America Plaza Whole Loan) (to the extent such parties have not already
received), the most recent Appraisal of the related Mortgaged Property 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 the Special
Servicer reasonably believes to be relevant to the fair value determination with
respect to such Mortgage Loan (such materials are, collectively, the
"Determination Information"). If the Special Servicer will not be determining
whether the Option Price represents fair value of the Defaulted Mortgage Loan,
pursuant to the penultimate paragraph of Section 3.18(a)(iv), the Special
Servicer shall also deliver the Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the related Master Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Reimbursement
Rate to the extent not included in (1) above, and (4) all accrued Special
Servicing Fees and additional Trust Fund expenses allocable to such
Defaulted Mortgage Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of
such Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee, the
Paying Agent and the Master Servicer of such transfer and such notice
shall include the transferee's name, address, telephone number, facsimile
number and appropriate contact person(s) and shall be acknowledged in
writing by the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout or
(D) subject to the Master Servicer's determination set forth in clause
(iv) below, upon another Option Holder's exercise of its Purchase Option
with respect to the related Mortgage Loan becoming effective pursuant to
clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicer, the Paying Agent and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit J, which notice
shall identify the Person that, on its own or through an Affiliate, will
acquire the related Mortgage Loan upon closing and shall specify a cash
exercise price at least equal to the Option Price. The Purchase Option
Notice shall be delivered in the manner specified in Section 12.05.
Immediately upon receipt of such Purchase Option Notice, the Special
Servicer shall notify the remaining Option Holders that a Purchase Option
has been exercised. Within ten (10) days thereafter, each remaining Option
Holder may submit to the Special Servicer a Purchase Option Notice for the
related Defaulted Mortgage Loan. Upon the expiration of such ten (10) day
period, or such sooner time as all remaining Option Holders have submitted
Purchase Option Notices, the Special Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price
that the exercise of its Purchase Option is effective. The Special
Servicer shall also notify the Trustee of such effective exercise. In the
event that more than one Option Holder exercises its Purchase Option at
the same price, the Purchase Option Notice first received by the Special
Servicer shall be effective. The exercise of any Purchase Option pursuant
to this clause (iii) shall be irrevocable; provided that the assignor of
the Purchase Option shall have no liability to the Trust or any other
party hereto for the failure of its third party assignee to close the sale
of the Defaulted Mortgage Loan after its exercise of the option, and upon
such failure, the Purchase Option shall revert to the Option Holder as
provided herein as if the Purchase Option had not been exercised, and the
Special Servicer shall pursue against such assignee whatever remedies it
may have against the assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Master Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the Master
Servicer has received the written notice and the Determination Information
to be provided to the Master Servicer by the Special Servicer under
Section 3.18(a)(i), whether the Option Price represents fair value for the
Defaulted Mortgage Loan; provided that, if the Special Servicer is then in
the process of obtaining a new Appraisal with respect to the related
Mortgaged Property, then the Master Servicer shall make its fair value
determination with respect to such Mortgage Loan as soon as reasonably
practicable (but in any event within thirty (30) days) after the Master
Servicer's receipt of such new Appraisal. Such fair value determination
shall be made in accordance with Servicing Standards. In determining the
fair value of any Defaulted Mortgage Loan, the Master Servicer shall take
into account, among other factors, the period and amount of the
delinquency on such Mortgage Loan, the occupancy level and physical
condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time
and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the Master Servicer shall refer to the
Determination Information and all other relevant information delivered to
it by the Special Servicer or otherwise contained in the Mortgage File;
provided that the Master Servicer shall take account of any change in
circumstances regarding the related Mortgaged Property known to the Master
Servicer that has occurred subsequent to, and that would, in the Master
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in, such appraisal. Furthermore, the Master
Servicer shall consider all available objective third-party information
obtained from generally available sources, as well as information obtained
from vendors providing real estate services to the Master Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related
Mortgaged Property is located. The Master Servicer may conclusively rely
on the opinion and reports of Independent third parties in making such
determination. The Master Servicer shall be entitled to receive out of the
Certificate Account as additional compensation a $1,000 fee plus
reasonable out-of-pocket costs and expenses for each determination made in
accordance with this clause (iv), provided, however, with respect to any
Mortgage Loan, such $1,000 fee shall be collectible once. The reasonable
cost of all third party consultants and related reports (in the event that
such inspection report is pursuant to this Section 3.18 and not an annual
inspection pursuant to Section 3.12), including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably
incurred by the Special Servicer or the Master Servicer pursuant to this
Section 3.18(a)(iv) shall constitute, and be reimbursable as, Servicing
Advances; provided that the Special Servicer or the Master Servicer may
rely on the most current Appraisal and property inspection report obtained
for the related Mortgaged Property pursuant to Section 3.12. The other
parties to this Agreement shall cooperate with all reasonable requests for
information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are
Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an Independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. The Master Servicer, at the
direction of the Trustee, may pay such third party a fee of up to $1,000
out of the Certificate Account. The reasonable costs of such Independent
third party appraisals, all inspection reports and broker opinions of
value, reasonably incurred by the Trustee or any such third party pursuant
to this paragraph shall be advanced by the Master Servicer and shall
constitute, and be reimbursable as, Servicing Advances. In connection with
the Trustee's designating an Independent third party, the Special Servicer
shall deliver to the Trustee for such Independent third party's use the
Determination Information.
In the event the Master Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of clause (v) below
and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
(10) Business Days of its receipt of the Special Servicer's (or the Master
Servicer's, if the Option Holder is the Special Servicer) notice
confirming that the exercise of its Purchase Option is effective. Upon
receipt of an Officer's Certificate from the Special Servicer or Master
Servicer, as applicable, specifying the date for closing the purchase of
the related Defaulted Mortgage Loan, and the purchase price to be paid
therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, 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 by such Option Holder
and are reasonably necessary to vest in the purchaser or any designee
thereof the ownership of such Mortgage Loan on a servicing released basis.
In connection with any such purchase by any Person other than it, the
Special Servicer shall deliver the related Mortgage File to or at the
direction of the purchaser. In any case, the Master Servicer shall deposit
the purchase price (except that portion of any purchase price constituting
Gain-on-Sale Proceeds which shall be deposited in the Gain-on-Sale Reserve
Account) into the Certificate Account within one (1) Business Day
following the closing of the sale of the related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise
its purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special Servicer
shall pursue such other resolution strategies with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate, consistent with
the Asset Status Report and the Servicing Standards and the REMIC
Provisions; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a
related Purchase Option or as otherwise permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Loan Pair, such purchase shall be a
purchase of the entire REO Property, including the portion relating to the
Companion Loans). The Special Servicer may also offer to sell to any Person any
REO Property (in the case of a Loan Pair, such sale shall be a sale of the
entire REO Property, including the portion relating to the Companion Loans), if
and when the Special Servicer determines, consistent with the Servicing
Standards, that such a sale would be in the best economic interests of the Trust
Fund and the Companion Holders. The Special Servicer shall give the Trustee, the
Master Servicer, the Paying Agent, each Companion Holder and the Directing
Certificateholder not less than five (5) Business Days' prior written notice of
the Purchase Price and its intention to (i) purchase any REO Property at the
Purchase Price therefor or (ii) sell any REO Property, in which case the Special
Servicer shall accept the highest offer received from any Person for any REO
Property in an amount at least equal to the Purchase Price therefor. To the
extent permitted by applicable law, and subject to the Servicing Standards, the
Master Servicer, an Affiliate of the Master Servicer, the Special Servicer or an
Affiliate of the Special Servicer, or an employee of either of them may act as
broker in connection with the sale of any REO Property and may retain from the
proceeds of such sale a brokerage commission that does not exceed the commission
that would have been earned by an independent broker pursuant to a brokerage
agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with the Servicing Standards,
that rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to the Servicing Standards, the Special Servicer shall
act on behalf of the Trust Fund and the Companion Holders in negotiating
and taking any other action necessary or appropriate in connection with
the sale of any REO Property, including the collection of all amounts
payable in connection therewith. A sale of any REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent or
the Trust Fund (except that any contract of sale and assignment and
conveyance documents may contain customary warranties of title, so long as
the only recourse for breach thereof is to the Trust Fund) and, if
consummated in accordance with the terms of this Agreement, none of the
Master Servicer, the Special Servicer, the Depositor, the Paying Agent nor
the Trustee shall have any liability to the Trust Fund or any
Certificateholder or Companion Holder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, the Companion
Holder will have the right to purchase the related AB Mortgage Loan, as
applicable, or related REO Property. With respect to each AB Mortgage Loan, such
right of the Companion Holder shall be given priority over any provision
described in this Section 3.18 subject, to the extent applicable, to any rights
of a mezzanine lender as set forth in Section 3.18(e). If the AB Mortgage Loan
or REO Property is purchased by the Companion Holder, repurchased by the
applicable Mortgage Loan Seller or otherwise ceases to be subject to this
Agreement, the related Companion Loan will no longer be subject to this
Agreement. None of the Trustee, the Paying Agent, the Master Servicer or the
Trust Fund shall acquire any Companion Loan.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as and to the extent set forth in the related
Intercreditor Agreement.
(f) In the event the Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither the Master Servicer nor the Special
Servicer shall exercise such right.
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer. (a) The Master Servicer shall deliver all Compensating Interest
Payments to the Paying Agent for deposit in the Distribution Account on each P&I
Advance Date, without any right of reimbursement therefor.
(b) The Master Servicer shall provide to each Companion Holder any
reports or notices required to be delivered to such Companion Holder pursuant to
the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the Certificate Account and available for
distribution on the next Distribution Date, the Master Servicer or the Trustee,
each at its own option and in its sole discretion, as applicable, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one month collection period ending on the then current
Determination Date, for successive one-month periods for a total period not to
exceed 12 months. If the Master Servicer or the Trustee makes such an election
at its sole option and in its sole discretion to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (together with interest
thereon), then such Nonrecoverable Advance (together with interest thereon) or
portion thereof shall continue to be fully reimbursable in the subsequent
collection period (subject, again, to the same sole option to defer; it is
acknowledged that, in such a subsequent period, such Nonrecoverable Advance
shall again be payable first from principal collections as described above prior
to payment from other collections). In connection with a potential election by
the Master Servicer or the Trustee to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the one month
collection period ending on the related Determination Date for any Distribution
Date, the Master Servicer or the Trustee shall further be authorized to wait for
principal collections on the Mortgage Loans to be received before making its
determination of whether to refrain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof) until the end of such collection
period; provided, however, if, at any time the Master Servicer or the Trustee,
as applicable, elects not to refrain from obtaining such reimbursement or
otherwise determines that the reimbursement of a Nonrecoverable Advance during a
one-month collection period will exceed the full amount of the principal portion
of general collections deposited in the Collection Account for such Distribution
Date, then the Master Servicer or the Trustee, as applicable, shall use its
reasonable efforts to give Moody's and Fitch 15 days' notice of such
determination, unless (1) the Master Servicer or the Trustee, as applicable,
determines in its sole discretion that waiting 15 days after such a notice could
jeopardize the Master Servicer's or the Trustee's ability, as applicable, to
recover such Nonrecoverable Advances, (2) changed circumstances or new or
different information becomes known to the Master Servicer or the Trustee, as
applicable, that could affect or cause a determination of whether any Advance is
a Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable
Advance or the determination in clause (1) above, or (3) the Master Servicer has
not timely received from the Trustee information requested by the Master
Servicer to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
Master Servicer or the Trustee, as applicable, shall give Moody's and Fitch
notice of an anticipated reimbursement to it of Nonrecoverable Advances from
amounts in the Certificate Account or Distribution Account, as applicable,
allocable to interest on the Mortgage Loans as soon as reasonably practicable in
such circumstances. The Master Servicer and the Trustee, as the case may be,
shall have no liability for any loss, liability or expense resulting from any
notice provided to Moody's and Fitch contemplated by the immediately preceding
sentence. Nothing herein shall give the Master Servicer or the Trustee the right
to defer reimbursement of a Nonrecoverable Advance to the extent of any
principal collections then available in the Certificate Account pursuant to
Section 3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, that the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to the Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standards and/or with respect to the Trustee (solely in its capacity as
Trustee), constitute a violation of any fiduciary duty to Certificateholders or
any contractual obligation hereunder. If the Master Servicer or the Trustee, as
applicable, determines, in its sole discretion, that its ability to fully
recover the Nonrecoverable Advances has been compromised, then the Master
Servicer or the Trustee, as applicable, shall be entitled to immediate
reimbursement of Nonrecoverable Advances with interest thereon at the
Reimbursement Rate from all amounts in the Certificate Account for such
Distribution Date (deemed first from principal and then interest). Any such
election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The Master Servicer's
or the Trustee's, as applicable, agreement to defer reimbursement of such
Nonrecoverable Advances as set forth above is an accommodation to the
Certificateholders and shall not be construed as an obligation on the part of
the Master Servicer or the Trustee, as applicable, or a right of the
Certificateholders. Nothing herein shall be deemed to create in the
Certificateholders a right to prior payment of distributions over the Master
Servicer's or the Trustee's, as applicable, right to reimbursement for Advances
(deferred or otherwise) and accrued interest thereon. In all events, the
decision to defer reimbursement or to seek immediate reimbursement of
Nonrecoverable Advances shall be deemed to be in accordance with the Servicing
Standard and none of the Master Servicer, the Trustee or the other parties to
this Agreement shall have any liability to one another or to any of the
Certificateholders or any of the Companion Holders for any such election that
such party makes as contemplated by this section or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), Section 3.20(i), Section 3.20(j) and Section
6.07, but subject to any other conditions set forth thereunder, and, with
respect to an AB Mortgage Loan or the Bank of America Plaza Mortgage Loan,
subject to the rights of the related Companion Holder to advise the Master
Servicer with respect to, or consent to, a modification, waiver or amendment
pursuant to the terms of the related Intercreditor Agreement, the Master
Servicer shall not modify, waive or amend the terms of a Mortgage Loan and/or a
Companion Loan without the prior written consent of the Special Servicer;
provided that, the Master Servicer shall forward to the Special Servicer
requests to extend the maturity date of a Mortgage Loan and/or Companion Loan
that is not a Specially Serviced Mortgage Loan, and the Special Servicer may
approve such request, and provided further, that except as provided in the
following sentence, no extension entered into pursuant to this Section 3.20(a)
shall extend the Maturity Date beyond the earlier of (i) two years prior to the
Rated Final Distribution Date and (ii) in the case of a Mortgage Loan secured by
a leasehold estate and not also the related fee interest, the date twenty years
or, to the extent consistent with the Servicing Standards giving due
consideration to the remaining term of the ground lease, ten years, prior to the
expiration of such leasehold estate. If such extension would extend the Maturity
Date of a Mortgage Loan and/or Companion Loan for more than twelve months from
and after the original Maturity Date of such Mortgage Loan and/or Companion Loan
and such Mortgage Loan and/or Companion Loan is not in default or default with
respect thereto is not reasonably foreseeable, the Master Servicer must provide
the Trustee, the Special Servicer and the Directing Certificateholders with an
Opinion of Counsel (at the expense of the related Mortgagor to the extent
permitted under the Mortgage Loan documents and, if not required or permitted to
be paid by the Mortgagor, to be paid as a Trust Fund expense in accordance with
Section 3.11(d) and the Special Servicer shall not consent to such extension
without the consent of the Directing Certificateholder) that such extension
would not constitute a "significant modification" of the Mortgage Loan and/or
Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
Notwithstanding the foregoing, subject to the rights of the related Companion
Holder to advise the Master Servicer with respect to, or consent to, such
modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement, the Master Servicer, without the consent of the Special
Servicer, may modify or amend the terms of any Mortgage Loan and/or Companion
Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or
supplement any provisions therein which may be inconsistent with any other
provisions therein or correct any error, provided that, if the Mortgage Loan
and/or Companion Loan is not in default or default with respect thereto is not
reasonably foreseeable, such modification or amendment would not be a
"significant modification" of the Mortgage Loan and/or Companion Loan within the
meaning of Treasury Regulations Section 1.860G-2(b).
Subject to Section 6.07 herein, applicable law and the Mortgage Loan
or Companion Loan documents, neither the Master Servicer nor the Special
Servicer shall permit the substitution of any Mortgaged Property (or any portion
thereof) for one or more other parcels of real property at any time the Mortgage
Loan and/or Companion Loan is not in default pursuant to the terms of the
related Mortgage Loan and/or Companion Loan documents or default with respect
thereto is not reasonably foreseeable unless (i) the Master Servicer or the
Special Servicer, as applicable, obtains from each Rating Agency (and delivers
to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates or Bank of America Plaza
Companion Loan Securities and (ii) either (a) such substitution is at the
unilateral option of the Mortgagor or otherwise occurs automatically pursuant to
the terms of the Mortgage Loan in effect on the Startup Day, within the meaning
of Treasury Regulations Section 1.1001-3, or (b) it has received an Opinion of
Counsel to the effect that such substitution would not be a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan and/or Companion Loan or otherwise, the release of collateral
or the pledge of additional collateral) of the terms of a Specially Serviced
Mortgage Loan with respect to which a payment default or other material default
has occurred or a payment default or other material default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is reasonably likely to produce a greater
recovery on a net present value basis (the relevant discounting to be performed
at the related Mortgage Rate) to the Trust and, if applicable, the Companion
Holders as the holders of such Companion Loans than liquidation of such
Specially Serviced Mortgage Loan, then the Special Servicer may agree to a
modification, waiver or amendment of such Specially Serviced Mortgage Loan,
subject to (x) the provisions of this Section 3.20(b) and Section 3.20(c), (y)
the approval of the Directing Certificateholder as provided in Section 3.21 and
(z) with respect to an AB Mortgage Loan or the Bank of America Plaza Mortgage
Loan, the rights of the related Companion Holder or the Bank of America Plaza
Companion Noteholder, as applicable, to advise and consult with the Special
Servicer with respect to, or consent to, such modification, waiver or amendment
pursuant to the terms of the related Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) The Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan or Companion Loan that is not in default or as to
which default is not reasonably foreseeable, if it consults with counsel (and,
if determined by the Special Servicer to be necessary, provides the Trustee with
an Opinion of Counsel (at the expense of the related Mortgagor or such other
Person requesting such modification or, if such expense cannot be collected from
the related Mortgagor or such other Person, to be paid by the Master Servicer as
a Servicing Advance; provided that the Master Servicer or Special Servicer, as
the case may be, shall use its reasonable efforts to collect such fee from the
Mortgagor or such other Person to the extent permitted under the related
Mortgage Loan documents)) to obtain advice regarding whether the contemplated
waiver, modification or amendment (i) will not be a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b) and (ii) will not cause (x) either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the Master
Servicer nor the Special Servicer may waive the payment of any Yield Maintenance
Charge or the requirement that any prepayment of a Mortgage Loan be made on a
Due Date, or if not made on a Due Date, be accompanied by all interest that
would be due on the next Due Date with respect to any Mortgage Loan or Companion
Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification that creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
(other than the Class R or Class LR Certificates).
(f) Subject to Section 3.20(c), the Master Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Master Servicer's or the
Special Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Companion Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to the Master Servicer or the Special Servicer, as the case may be, as
additional servicing compensation, a reasonable or customary fee, for the
additional services performed in connection with such request; provided, that
the charging of such fee is not a "significant modification" of the Mortgage
Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the Master Servicer or the Special
Servicer, as the case may be, and the related Mortgagor (and by any guarantor of
the related Mortgage Loan, if such guarantor's signature is required by the
Special Servicer in accordance with the Servicing Standards).
(h) Each of the Master Servicer and the Special Servicer shall
notify the Rating Agencies, the Trustee, the Directing Certificateholder, the
applicable Companion Holder, the Mortgage Loan Sellers (if such Mortgage Loan
Seller is not a Servicer or Sub-Servicer of such Mortgage Loan or the Directing
Certificateholder) if any, and each other in writing of any modification, waiver
or amendment of any term of any Mortgage Loan or Companion Loan and the date
thereof, and shall deliver to the Trustee or the related Custodian with a copy
to the Master Servicer (if such notice is being delivered by the Special
Servicer) for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly (and
in any event within 10 Business Days) following the execution thereof, with a
copy to the applicable Companion Holder, if any. Following receipt of the Master
Servicer's or the Special Servicer's, as applicable, delivery of the aforesaid
modification, waiver or amendment to the Paying Agent, the Paying Agent shall
forward a copy thereof to each Holder of a Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class NR Certificate upon
request.
(i) Notwithstanding the foregoing, neither the Master Servicer nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan or the Bank of
America Plaza Whole Loan unless such defeasance complies with Treasury
Regulations Section 1.860G-2(a)(8) and the Master Servicer or the Special
Servicer, as applicable, has received (i) a certificate of an Independent
certified public accountant to the effect that such substituted property will
provide cash flows sufficient to meet all payments of interest and principal
(including payments at maturity) on such Mortgage Loan or the Bank of America
Plaza Whole Loan in compliance with the requirements of the terms of the related
Mortgage Loan documents and, if applicable, Companion Loan documents, (ii) one
or more Opinions of Counsel (at the expense of the related Mortgagor) to the
effect that the Trustee, on behalf of the Trust Fund, will have a first priority
perfected security interest in such substituted Mortgaged Property; provided,
however, that, to the extent consistent with the related Mortgage Loan documents
and, if applicable, Companion Loan documents, the related Mortgagor shall pay
the cost of any such opinion as a condition to granting such defeasance, (iii)
to the extent consistent with the related Mortgage Loan documents, the Mortgagor
shall establish a single purpose entity to act as a successor Mortgagor, if so
required by the Rating Agencies, (iv) to the extent permissible under the
related Mortgage Loan documents and, if applicable, Companion Loan documents,
the Master Servicer or Special Servicer, as applicable shall use its reasonable
efforts to require the related Mortgagor to pay all costs of such defeasance,
including but not limited to the cost of maintaining any successor Mortgagor and
(v) to the extent permissible under the Mortgage Loan documents and, if
applicable, Companion Loan documents, the Master Servicer or Special Servicer,
as applicable shall obtain, at the expense of the related Mortgagor, written
confirmation from the Rating Agencies that such defeasance will not cause the
downgrade, withdrawal or modification of the then current ratings of the
Certificates (or, insofar as there is then outstanding any class of Bank of
America Plaza Companion Loan Securities that is then rated by such Rating
Agency, such class of securities); provided, however, that the Master Servicer
or Special Servicer, as applicable shall not be required to obtain the Xxxxx'x
confirmation referenced in clause (v) above with respect to any Mortgage Loan
which has a Stated Principal Balance less than $20,000,000 and represents less
than 5% of the Stated Principal Balance of all the Mortgage Loans, so long as
such Mortgage Loan is not one of the ten largest Mortgage Loans by Stated
Principal Balance.
(j) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
Master Servicer or the Special Servicer may permit the substitution of
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan or Bank of America Plaza Whole Loan, as applicable (or any
portion thereof), in lieu of the defeasance collateral specified in the related
Mortgage Loan or Bank of America Plaza Whole Loan, as applicable, or Companion
Loan documents; provided that the Master Servicer or the Special Servicer
reasonably determines that allowing their use would not cause a default or event
of default to become reasonably foreseeable and the Master Servicer or the
Special Servicer receives, to the extent permitted under the Mortgage Loan
documents an Opinion of Counsel (at the expense of the Mortgagor to the extent
permitted under the Mortgage Loan documents and, if applicable, Companion Loan
documents and if not so permitted, paid as a Servicing Advance) to the effect
that such use would not be and would not constitute a "significant modification"
of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section
1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with
respect to any REMIC and provided, further, that the requirements set forth in
Section 3.20(i) (including the ratings confirmations) are satisfied; and
provided, further, that such securities are backed by the full faith and credit
of the United States government, or the Master Servicer or the Special Servicer
shall obtain a written confirmation of each Rating Agency that the use of such
securities will not result in the downgrade, withdrawal or qualification of the
then current ratings of any Class of Certificates outstanding (or, insofar as
there is then outstanding any class of Bank of America Plaza Companion Loan
Securities that is then rated by such Rating Agency, such class of securities).
(k) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, the Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by the Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall the Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by the Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, the Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
(l) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall,
unless it has received prior written confirmation (the cost of which shall be
paid by the related Mortgagor, if so allowed by the terms of the related loan
documents and otherwise paid out of general collections) from the Rating
Agencies that such action will not result in a qualification, downgrade or
withdrawal of any of the ratings assigned by such Rating Agency to the
Certificates (or, insofar as there is then outstanding any class of Bank of
America Plaza Companion Loan Securities then rated by such Rating Agency, such
class of securities), grant or accept any consent, approval or direction
regarding the termination of the related property manager or the designation of
any replacement property manager, with respect to any Mortgaged Property that
secures a Mortgage Loan with an unpaid principal balance that is at least equal
to five percent (5%) of the then aggregate principal balance of all Mortgage
Loans or $25,000,000.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the Master Servicer or the Special Servicer, as applicable,
shall promptly give notice to the Master Servicer or the Special Servicer, as
applicable, and the Directing Certificateholder thereof, and the Master Servicer
shall deliver the related Mortgage File and Servicing File to the Special
Servicer and shall use its reasonable efforts to provide the Special Servicer
with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and, if applicable, the related Companion Loan, either in the
Master Servicer's possession or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto.
The Master Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each related
Servicing Transfer Event and in any event shall continue to act as Master
Servicer and administrator of such Mortgage Loan and, if applicable, the related
Companion Loan(s) until the Special Servicer has commenced the servicing of such
Mortgage Loan and, if applicable, the related Companion Loan. The Master
Servicer shall deliver to the Trustee, the Paying Agent and the Directing
Certificateholder a copy of the notice of such Servicing Transfer Event provided
by the Master Servicer to the Special Servicer, or by the Special Servicer to
the Master Servicer, pursuant to this Section. The Paying Agent shall deliver to
each Controlling Class Certificateholder a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the Master Servicer and the Directing Certificateholder and shall return the
related Mortgage File and Servicing File to the Master Servicer (or copies
thereof if copies only were delivered to the Special Servicer) and upon giving
such notice, and returning such Mortgage File and Servicing File to the Master
Servicer, the Special Servicer's obligation to service such Corrected Mortgage
Loan shall terminate and the obligations of the Master Servicer to service and
administer such Mortgage Loan and, if applicable, the Companion Loan, shall
recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File to the extent within its possession or created by it (with a copy
of each such original to the Master Servicer), and provide the Master Servicer
with copies of any additional related Mortgage Loan or Companion Loan
information including correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties and
shall provide the Special Servicer with any information in its possession with
respect to such records to enable the Special Servicer to perform its duties
under this Agreement, provided that this statement shall not be construed to
require the Master Servicer to produce any additional reports.
(d) No later than 60 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the Companion Loan, the Special Servicer shall
deliver to the Master Servicer, each Rating Agency, the Trustee, the Paying
Agent, each related Companion Holder and the Directing Certificateholder, a
report (the "Asset Status Report") with respect to such Mortgage Loan or
Companion Loan and the related Mortgaged Property; provided, however, the
Special Servicer shall not be required to deliver an Asset Status Report to the
Directing Certificateholder if they are the same entity. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable based on the information that was delivered to the Special Servicer
in connection with the transfer of servicing pursuant to the Servicing Transfer
Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Master Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report and shall promptly furnish the applicable Mortgage
Loan Seller with a copy thereof; provided, however, that the Special Servicer
may not take any action that is contrary to applicable law, the Servicing
Standards or the terms of the applicable Mortgage Loan documents. If the
Directing Certificateholder disapproves such Asset Status Report within 10
Business Days of receipt, the Special Servicer will revise such Asset Status
Report and deliver to the Directing Certificateholder, the Rating Agencies, the
applicable Mortgage Loan Seller, the Trustee and the Master Servicer a new Asset
Status Report as soon as practicable, but in no event later than 30 days after
such disapproval. The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Directing Certificateholder
shall fail to disapprove such revised Asset Status Report in writing within ten
(10) Business Days of receiving such revised Asset Status Report or until the
Special Servicer makes one of the determinations described below.
Notwithstanding the foregoing, in the event the Directing Certificateholder and
the Special Servicer have been unable to agree upon an Asset Status Report with
respect to a Specially Serviced Mortgage Loan within 90 days of the Directing
Certificateholder's receipt of the initial Asset Status Report, the Special
Servicer, subject to the rights of the related Companion Holder pursuant to the
related Intercreditor Agreement, if applicable, shall implement the actions
directed by the Directing Certificateholder unless such actions would violate
the Servicing Standard, in which case the Special Servicer shall implement
actions described in the most recent Asset Status Report submitted to the
Directing Certificateholder by the Special Servicer, and the Special Servicer
shall promptly furnish the applicable Mortgage Loan Seller with a copy of any
Asset Status Report which the Special Servicer intends to, or commences to,
implement pursuant to this Section 3.21(d). The Special Servicer may, from time
to time, modify any Asset Status Report it has previously delivered and
implement such report, provided such report shall have been prepared, reviewed
and not rejected pursuant to the terms of this Section. Notwithstanding the
foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a ten (10)
Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders or, if a Loan Pair is involved, the Companion Holder,
and it has made a reasonable effort to contact the Directing Certificateholder
and (ii) in any case, shall determine whether such affirmative disapproval is
not in the best interest of all the Certificateholders pursuant to the Servicing
Standards. Each final Asset Status Report shall be delivered to the Master
Servicer, the applicable Mortgage Loan Seller, the Trustee (upon request) and
each Rating Agency.
Subject to the rights of the related Companion Holder to advise the
Special Servicer with respect to, or consent to, such modification, waiver or
amendment pursuant to the terms of the related Intercreditor Agreement, the
Special Servicer shall have the authority to meet with the Mortgagor for any
Specially Serviced Mortgage Loan and take such actions consistent with the
Servicing Standards and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standards.
No direction or disapproval of the Directing Certificateholder
hereunder or failure of the Directing Certificateholder to consent to or approve
(including any deemed consents or approvals) any request of the Special
Servicer, shall (a) require or cause the Special Servicer to violate the terms
of a Specially Serviced Mortgage Loan, applicable law or any provision of this
Agreement, including the Special Servicer's obligation to act in accordance with
the Servicing Standards and to maintain the REMIC status of each of the
Lower-Tier REMIC and the Upper-Tier REMIC, or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) expose the Master Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Sellers, the Trust Fund, the Trustee, the Paying
Agent or their respective officers, directors, employees or agents to any claim,
suit or liability or (d) materially expand the scope of the Special Servicer's,
Trustee's or the Master Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the Master Servicer shall with reasonable promptness give notice
thereof, and shall use its reasonable efforts to provide the Special Servicer
with all information relating to the Mortgage Loan or Companion Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) The Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations hereunder; provided that the
Sub-Servicing Agreement as amended or modified: (i) is consistent with this
Agreement in all material respects and requires the Sub-Servicer to comply with
all of the applicable conditions of this Agreement; (ii) provides that if the
Master Servicer shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), the Trustee
or its designee shall thereupon assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer under such agreement, or, alternatively, may act in accordance with
Section 7.02 hereof under the circumstances described therein (subject to
Section 3.22(g) hereof); (iii) provides that the Trustee for the benefit of the
Certificateholders, the related Companion Holder (if applicable) and the Trustee
(as holder of the Uncertificated Lower-Tier Interests) shall be a third party
beneficiary under such Sub-Servicing Agreement, but that (except to the extent
the Trustee or its designee assumes the obligations of the Master Servicer
thereunder as contemplated by the immediately preceding clause (ii)) none of the
Trust Fund, the Trustee, the Paying Agent, the Special Servicer, any successor
Master Servicer or any Certificateholder (or the related Companion Holder, if
applicable) shall have any duties under such Sub-Servicing Agreement or any
liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such Sub-Servicing Agreement with
respect to such purchased Mortgage Loan at its option and without penalty;
provided, however, that the Initial Sub-Servicing Agreements may only be
terminated by the Trustee or its designees as contemplated by Section 3.22(g)
hereof and in such additional manner and by such other Persons as is provided in
such Sub-Servicing Agreement; (v) does not permit the Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund
and (vi) does not permit the Sub-Servicer to modify any Mortgage Loan unless and
to the extent the Master Servicer is permitted hereunder to modify such Mortgage
Loan. Any successor Master Servicer hereunder shall, upon becoming successor
Master Servicer, be assigned and shall assume any Sub-Servicing Agreements from
the predecessor Master Servicer (subject to Section 3.22(g) hereof). In
addition, each Sub-Servicing Agreement entered into by the Master Servicer may
but need not provide that the obligations of the Sub-Servicer thereunder shall
terminate with respect to any Mortgage Loan serviced thereunder at the time such
Mortgage Loan becomes a Specially Serviced Mortgage Loan; provided, however,
that the Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement
provides for Advances by the Sub-Servicer, although it need not so provide) that
the Sub-Servicer will continue to make all Advances and calculations and prepare
all reports required under the Sub-Servicing Agreement with respect to Specially
Serviced Mortgage Loans and continue to collect its Primary Servicing Fees as if
no Servicing Transfer Event had occurred and with respect to REO Properties (and
the related REO Loans) as if no REO Acquisition had occurred and to render such
incidental services with respect to such Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for in such Sub-Servicing Agreement.
The Master Servicer shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it, in each case promptly upon its execution and delivery of such documents.
References in this Agreement to actions taken or to be taken by the Master
Servicer include actions taken or to be taken by a Sub-Servicer on behalf of the
Master Servicer; and, in connection therewith, all amounts advanced by any
Sub-Servicer (if the Sub-Servicing Agreement provides for Advances by the
Sub-Servicer, although it need not so provide) to satisfy the obligations of the
Master Servicer hereunder to make Advances shall be deemed to have been advanced
by the Master Servicer out of its own funds and, accordingly, in such event,
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 the Master Servicer, and, for
so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(d), such interest to be allocable between the
Master Servicer and such Sub-Servicer as may be provided (if at all) pursuant to
the terms of the Sub-Servicing Agreement. For purposes of this Agreement, the
Master Servicer shall be deemed to have received any payment when a Sub-Servicer
retained by it receives such payment. The Master Servicer shall notify the
Special Servicer, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer, except that the Master Servicer need not
provide such notice as to the Initial Sub-Servicing Agreements.
(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 the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the Master
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each Sub-Servicer under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as is in accordance with the Servicing Standards. The Master Servicer shall
have the right to remove a Sub-Servicer retained by it in accordance with the
terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of the Master Servicer
under any Sub-Servicing Agreement, the Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
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 the provisions of any Sub-Servicing Agreement
and this Section 3.22, except to the extent provided in Article XI with respect
to the obligations of any Sub-Servicer that is an Initial Sub-Servicer, the
Master Servicer shall remain obligated and responsible to the Trustee, the
Special Servicer, holders of the Companion Loans serviced hereunder and the
Certificateholders for the performance of its 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 it alone were servicing and administering
the Mortgage Loans for which it is responsible, and the Master Servicer shall
pay the fees of any Sub-Servicer thereunder as and when due from its own funds.
In no event shall the Trust Fund bear any termination fee required to be paid to
any Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate such
Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding
the foregoing or any other contrary provision in this Agreement, the Trustee and
any successor Master Servicer shall assume each Initial Sub-Servicing Agreement
and (i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the Master Servicer pursuant to the terms
hereof (and within the same period of time required herein), within a sufficient
period of time to allow the Sub-Servicer to fulfill its obligations under such
Sub-Servicing Agreement and in no event later than 1 Business Day prior to the
applicable Determination Date (or such other date as specified herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein,
unless (i) the Special Servicer receives the consent of the Directing
Certificateholder and (ii) the Special Servicer receives the written
confirmation of Fitch and Xxxxx'x that such agreement will not cause the
downgrade, withdrawal or qualification of any of the current ratings assigned to
any Class of Certificates.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers. (a) The Master Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders and to
the Depositor, the Paying Agent and the Special Servicer, as of the Closing
Date, that:
(i) The Master Servicer is a national banking association, duly
organized, validly existing and in good standing under the laws of the
United States, and the Master Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not (A) violate the Master
Servicer's organizational documents, (B) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets or (C) violate any law, rule, regulation, order, judgment or
decree to which the Master Servicer or its property is subject, which, in
the case of either (B) or (C), is likely to materially and adversely
affect either the ability of the Master Servicer to perform its
obligations under this Agreement or its financial condition;
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Special Servicer, the Paying Agent and the
Depositor, constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with the
terms hereof, subject to (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 this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of any law, order
or decree of any court or arbiter, or any order regulation or demand of
any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to 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;
(vi) 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 good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect either the ability
of the Master Servicer to perform its obligations under this Agreement;
(vii) The Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof;
(viii) No consent, approval, authorization or order, registration,
filing with or notice to any governmental authority or court is required
under federal or state law, for the execution, delivery and performance by
the Master Servicer, or compliance by the Master Servicer with, this
Agreement or the consummation of any transactions contemplated hereby,
other than (A) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (B)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Master Servicer under this Agreement; and
(ix) The Master Servicer has full power and authority to enter into
and consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor and the Master Servicers, 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 Florida, 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 perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not (A) violate the Special
Servicer's organizational documents, (B) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets, or (C) violate any law, rule, regulation, order,
judgment or decree to which the Special Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Special Servicer to perform
its obligations under this Agreement or its financial condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject (A) to
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 default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect the ability of the Special Servicer to
perform its obligations under this Agreement;
(vii) The Special Servicer has errors and omissions coverage which
is in full force and effect and complies with the requirements of Section
3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December (unless in either such case, the
related Distribution Date is the final Distribution Date), the Paying Agent, in
respect of the Actual/360 Mortgage Loans, shall deposit into the Interest
Reserve Account, an amount equal to one day's interest on the Stated Principal
Balance of the Interest Reserve Loans as of the Due Date occurring in the month
preceding the month in which such P&I Advance Date occurs at the related Net
Mortgage Rate, to the extent a full Monthly Payment or P&I Advance is made in
respect thereof (all amounts so deposited in any consecutive February and
January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March (or February, if the
related Distribution Date is the final Distribution Date), the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January and February (if applicable), if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 [Reserved].
Section 3.27 Directing Certificateholder Contact with Master
Servicer and Special Servicer. No less often than on a monthly basis, each of
the Master Servicer and the Special Servicer shall, without charge, make a
knowledgeable Servicing Officer via telephone available to verbally answer
questions from the Directing Certificateholder regarding the performance and
servicing of the Mortgage Loans and/or REO Properties for which the Master
Servicer or the Special Servicer, as the case may be, is responsible.
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Paying Agent and to notify the Master Servicer, the Paying Agent and Special
Servicer of the transfer of any Certificate of a Controlling Class, the
selection of a Directing Certificateholder or the resignation or removal
thereof. The Directing Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to notify the Master Servicer, Special
Servicer and Paying Agent when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) Once a Directing Certificateholder has been selected, each of
the Master Servicer, the Special Servicer, the Depositor, the Trustee, the
Paying Agent and each other Certificateholder (or Certificate Owner, if
applicable) shall be entitled to rely on such selection unless a majority of the
Controlling Class Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Master Servicer, Special Servicer, the
Trustee, the Paying Agent and each other Controlling Class Certificateholder, in
writing, of the resignation of such Directing Certificateholder or the selection
of a new Directing Certificateholder. Upon the resignation of a Directing
Certificateholder, the Paying Agent shall request the Controlling Class
Certificateholders to select a new Directing Certificateholder.
(c) Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the most recent notification with respect to the identity of
the Controlling Class Certificateholder and the Directing Certificateholder.
(d) Upon request, the Paying Agent shall deliver to the Trustee, the
Special Servicer and the Master Servicer a list of each Controlling Class
Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Trustee, the Master Servicer and the Special Servicer.
Notwithstanding the foregoing, American Capital Strategies, Ltd. shall be the
initial Directing Certificateholder and shall remain so until a successor is
appointed pursuant to the terms of this Agreement.
Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder.
(e) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository) of such event.
(f) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder 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 Directing Certificateholder shall have no
liability whatsoever (other than to a Controlling Class Certificateholder) for
having so acted, and no Certificateholder may take any action whatsoever against
the Directing Certificateholder or any director, officer, employee, agent or
principal thereof for having so acted.
(g) All requirements of the Master Servicer and the Special Servicer
to provide notices, reports, statements or other information (including the
access to information on a website) provided to the Directing Certificateholder
contained in this Agreement shall also apply to each Companion Holder with
respect to information relating to the related AB Mortgage Loan or the Bank of
America Plaza Whole Loan, as applicable.
Section 3.29 Intercreditor Agreements. Each of the Master Servicer
and Special Servicer acknowledges and agrees that each Loan Pair being serviced
under this Agreement and each Mortgage Loan with mezzanine debt is subject to
the terms and provisions of the related Intercreditor Agreement and each agrees
to service each such Loan Pair and each Mortgage Loan with mezzanine debt in
accordance with the related Intercreditor Agreement and this Agreement,
including, without limitation, effecting distributions and allocating
reimbursement of expenses in accordance with the related Intercreditor Agreement
and, in the event of any conflict between the provisions of this Agreement and
the related Intercreditor Agreement, the related Intercreditor Agreement shall
govern. Notwithstanding anything contrary in this Agreement, each of the Master
Servicer and Special Servicer agrees not to take any action with respect to a
Loan Pair or a Mortgage Loan with mezzanine debt or the related Mortgaged
Property without the prior consent of the related Companion Holder or mezzanine
lender, as applicable, to the extent that the related Intercreditor Agreement
provides that such Companion Holder or mezzanine lender, as applicable, is
required to consent to such action. Each of the Master Servicer and Special
Servicer acknowledges and agrees that each Companion Holder and mezzanine lender
or its respective designee has the right to purchase the related Mortgage Loan
pursuant to the terms and conditions of the related Intercreditor Agreement.
Neither the Master Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder or mezzanine lender under the related Intercreditor
Agreement or conflict between the terms of this Agreement and the terms of such
Intercreditor Agreement. Notwithstanding any provision of any Intercreditor
Agreement that may otherwise require the Master Servicer or the Special Servicer
to abide by any instruction or direction of a Companion Holder or mezzanine
lender, neither the Master Servicer nor the Special Servicer shall be required
to comply with any instruction or direction the compliance with which requires
an Advance that constitutes or would constitute a Nonrecoverable Advance. In no
event shall any expense arising from compliance with an Intercreditor Agreement
constitute an expense to be borne by the Master Servicer or Special Servicer for
its own account without reimbursement. In no event shall the Master Servicer or
the Special Servicer be required to consult with or obtain the consent of any
Companion Holder or mezzanine lender unless such Companion Holder or mezzanine
lender has delivered notice of its identity and contact information to each of
the parties to this Agreement (upon which notice each of the parties to this
Agreement shall be conclusively entitled to rely). As of the Closing Date, the
contact information for the Companion Holders and mezzanine lenders is as set
forth in the related Intercreditor Agreement, or as otherwise set forth in
Section 12.05 of this Agreement.
No direction or disapproval of the Companion Holders or the
mezzanine lenders shall (a) require or cause the Master Servicer or Special
Servicer to violate the terms of a Mortgage Loan, applicable law or any
provision of this Agreement, including the Master Servicer's or Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each of the Lower-Tier REMIC and the Upper-Tier
REMIC or (b) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (c) materially
expand the scope of the Special Servicer's, Trustee's, the Paying Agent's or the
Master Servicer's responsibilities under this Agreement.
Section 3.30 Companion Paying Agent. (a) The Master Servicer shall
be the Companion Paying Agent hereunder. The Companion Paying Agent undertakes
to perform such duties and only such duties as are specifically set forth
herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Master Servicer pursuant
to Article VII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register. The Companion Paying Agent shall
maintain a register (the "Companion Register") on which it will record the names
and address of, and wire transfer instructions for, the Companion Holders from
time to time, to the extent such information is provided in writing to it by
each Companion Holder. The initial Companion Holders, along with their
respective name and address, are listed on Exhibit Q hereto. In the event a
Companion Holder transfers a Companion Loan without notice to the Companion
Paying Agent, the Companion Paying Agent shall have no liability for any
misdirected payment in the Companion Loan and shall have no obligation to
recover and redirect such payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
Section 3.32 Litigation Control. (a) (i) The Special Servicer (with
respect to any Specially Serviced Mortgage Loan and, if directed by the
Directing Certificateholder, any Mortagage Loan) or the Master Servicer (with
respect to any Non-Specially Serviced Mortgage Loan, unless otherwise directed
by the Directing Certificateholder), as the case may be, shall, (1) direct,
manage, prosecute and/or defend any action brought by a Mortgagor against the
Trust and/or the Special Servicer and (2) represent the interests of the Trust
in any litigation relating to the rights and obligations of the Mortgagor or the
Trust, or the enforcement of the obligations of a borrower, under the Mortgage
Loan Documents (for purposes of this Section 3.32(a), "Trust-Related
Litigation") with respect to the Mortgage Loans.
(ii) To the extent the Master Servicer is named in Trust-Related
Litigation, and the Trust or Special Servicer is not named, in order to
effectuate the role of the Special Servicer set forth in this Section
3.32(a), the Master Servicer shall (1) notify the Special Servicer of such
Trust Related Litigation within ten (10) days of the Master Servicer
receiving service of such Trust Related Litigation; (2) provide monthly
status reports to the Special Servicer, regarding such Trust-Related
Litigation; (3) seek to have the Trust replace the Master Servicer as the
appropriate party to the lawsuit; and (4) so long as the Master Servicer
remains a party to the lawsuit, consult with and act at the direction of
the Special Servicer with respect to decisions and resolutions related to
the interests of the Trust in such Trust-Related Litigation, including but
not limited to the selection of counsel, provided, however, if there are
claims against the Master Servicer and the Master Servicer has not
determined that separate counsel is required for such claims, such counsel
shall be reasonably acceptable to the Master Servicer. If the Special
Servicer handles a claim in which the Master Servicer (individually or in
such capacity) is named, the Special Servicer shall provide the Master
Servicer with copies of any notices, process and/or pleadings submitted
and/or filed in any such action, suit, litigation or proceeding.
(iii) Notwithstanding the right of the Special Servicer to represent
the interests of the Trust in Trust-Related Litigation, and subject to the
rights of the Special Servicer to direct the Master Servicer's actions in
Section 3.32(a)(iv) below, the Master Servicer shall retain the right to
make determinations relating to claims against the Master Servicer,
including but not limited to the right to engage separate counsel if
necessary. Further, nothing in this section shall require the Master
Servicer to take or fail to take any action which, in the Master
Servicer's good faith and reasonable judgment, may (1) result in an
Adverse REMIC Event or (2) subject the Master Servicer to material
liability or materially expand the scope of the Master Servicer's
obligations under this Agreement.
(iv) Notwithstanding the Master Servicer's right to make
determinations relating to claims against the Master Servicer, the Special
Servicer shall (1) have the right at any time to direct the Master
Servicer to settle any claims brought against the Trust, including claims
asserted against the Master Servicer (whether or not the Trust or the
Special Servicer is named in any such claims or Trust-Related Litigation)
and (2) otherwise direct the actions of the Master Servicer relating to
claims against the Master Servicer (whether or not the Trust or the
Special Servicer is named in any such claims or Trust-Related Litigation),
provided in either case that (A) the Master Servicer shall have the right
to approve or disapprove of any judgement, settlement, final order or
decree that may impose liability on the Master Servicer or otherwise
materially and adversely affect the Master Servicer, including but not
limited to, damage to the Master Servicer's reputation as a master
servicer, (B) the Master Servicer may retain its own counsel, whose
reasonable costs shall be paid by the Trust subject to Section 6.03, and
appear in any action, suit, litigation or proceeding on its own behalf in
order to represent, protect and defend its interests, the cost of such
settlement or any judgment is paid by the Trust, (C) the Master Servicer
is indemnified pursuant to Section 6.03 hereof for all costs and expenses
of the Master Servicer incurred in defending and settling the Trust
Related Litigation, (D) any such action taken by the Master Servicer at
the direction of the Special Servicer be deemed (as to the Master
Servicer) to be in compliance with the Servicing Standard, and (E) the
Special Servicer provides the Master Servicer with assurance reasonably
satisfactory to the Master Servicer as to the items in clauses (A), (B)
and (C).
(v) In the event both the Master Servicer and the Special Servicer
or Trust are named in litigation, the Master Servicer and the Special
Servicer shall cooperate with each other to afford the Master Servicer and
the Special Servicer the rights afforded to such party in this Section
3.32.
(vi) This Section 3.32(a) shall not apply in the event the Special
Servicer authorizes the Master Servicer, and the Master Servicer agrees
(both authority and agreement to be in writing), to make certain decisions
or control certain litigation on behalf of the Trust.
(b) Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Paying Agent or the Trustee, as
applicable, in its individual capacity, or in the event that any judgment is
rendered against the Paying Agent or the Trustee, as applicable, in its
individual capacity, the Paying Agent or the Trustee, as applicable, upon prior
written notice to the Master Servicer or the Special Servicer, as applicable,
may retain counsel and appear in any such proceeding on its own behalf in order
to protect and represent its interests; provided that the Master Servicer or
Special Servicer, as applicable, shall retain the right to manage and direct any
such action, suit, litigation or proceeding; (ii) in the event of any action,
suit, litigation or proceeding, other than an action, suit, litigation or
proceeding relating to the enforcement of the obligations of a Mortgagor under
the related Mortgage Loan documents or otherwise relating to a Mortgage Loan or
Mortgaged Property, neither the Master Servicer nor the Special Servicer shall,
without the prior written consent of the Paying Agent or the Trustee, as
applicable, (A) initiate any action, suit, litigation or proceeding in the name
of the Paying Agent or the Trustee, as applicable, whether in such capacity or
individually, (B) engage counsel to represent the Paying Agent, or (C) prepare,
execute or deliver any government filings, forms, permits, registrations or
other documents or take any other similar action with the intent to cause, and
that actually causes, the Paying Agent or the Trustee, as applicable, to be
registered to do business in any state, and (iii) in the event that any court
finds that the Paying Agent or the Trustee, as applicable, is a necessary party
in respect of any action, suit, litigation or proceeding relating to or arising
from this Agreement or any Mortgage Loan, the Paying Agent or the Trustee, as
applicable shall have the right to retain counsel and appear in any such
proceedings on its own behalf in order to protect and represent its interest,
whether as Paying Agent or the Trustee, as applicable or individually; provided
that the Master Servicer or the Special Servicer, as applicable, shall retain
the right to manage and direct any such action, suit, litigation or proceeding.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Paying Agent shall be deemed to transfer the Lower-Tier Distribution Amount from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account in
the amounts and priorities set forth in Section 4.01(b) with respect to each
Class of Uncertificated Lower-Tier Interests, and immediately thereafter, 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:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-3 Certificates, the Class A-4 Certificates and
the Class A-SB Certificates, pro rata (based upon their respective
entitlements to interest for such Distribution Date), in respect of
interest, from the Loan Group 1 Available Distribution Amount and up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Classes of Certificates or Regular Interests for such Distribution
Date; (B) to the Holders of the Class A-1A Certificates, in respect of
interest, from the Loan Group 2 Available Distribution Amount and up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class of Certificates for such Distribution Date and (C) to the
Holders of the Class X Certificates, in respect of interest, up to an
amount equal to the Interest Distribution Amount payable in respect of
such Classes of Certificates for such Distribution Date; provided,
however, that if the Loan Group 1 Available Distribution Amount and/or the
Loan Group 2 Available Distribution Amount is insufficient to pay in full
the Interest Distribution Amount provided above, payable in respect of any
Class A Certificates or Class X Certificates on such Distribution Date,
then the entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the respective Classes of the
Class A Certificates and the Class X Certificates, up to an amount equal
to, and pro rata as among such Classes in accordance with, the Interest
Distribution Amount in respect of each such Class of Certificates for such
Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-3 Certificates, the Class A-4 Certificates, the Class A-SB Certificates
and the Class A-1A Certificates in reduction of the Certificate Balances
thereof, concurrently: (A)(1) first, to the Holders of the Class A-SB
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount for such Distribution Date remaining after the
payments specified in clause (B) below have been made on such Distribution
Date, until the outstanding Certificate Balance of the Class A-SB
Certificates has been reduced to the Class A-SB Planned Principal Balance;
(2) second, to the Holders of the Class A-1 Certificates, in an amount up
to the Loan Group 1 Principal Distribution Amount and, after the
outstanding Certificate Balance of the Class A-1A Certificates has been
reduced to zero, the Loan Group 2 Principal Distribution Amount, in each
case, to the extent remaining after payments as specified in clause (A)(1)
above and clause (B) below) have been made on such Distribution Date,
until the outstanding Certificate Balance of the Class A-1 Certificates
has been reduced to zero; (3) third, to the Holders of the Class A-3
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after payments
as specified in clauses (A)(1) and (2) above and clause (B) below) have
been made on such Distribution Date, until the outstanding Certificate
Balance of the Class A-3 Certificates has been reduced to zero; (4)
fourth, to the Holders of the Class A-4 Certificates, in an amount up to
the Loan Group 1 Principal Distribution Amount and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount, in each case, to the
extent remaining after payments as specified in clauses (A)(1), (2) and
(3) above and clause (B) below have been made on such Distribution Date,
until the outstanding Certificate Balance of the Class A-4 Certificates
has been reduced to zero and (5) fifth, to the Holders of the Class A-SB
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after payments
as specified in clauses (A)(1), (2), (3) and (4) above and clause (B)
below have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-SB Certificates has been reduced to
zero and (B) to the Holders of the Class A-1A Certificates, in an amount
up to the Loan Group 2 Principal Distribution Amount and, after the
Certificate Balances of the Class A-4 and Class A-SB Certificates have
been reduced to zero, the Loan Group 1 Principal Distribution Amount
remaining after payments specified in clauses (A)(1), (2), (3), (4) and
(5) above have been made on such Distribution Date, until the Certificate
Balance of the Class A-1A Certificates has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-SB Certificates and Class
A-1A Certificates, pro rata (based upon the aggregate unreimbursed
Collateral Support Deficit allocated to each such Class), until all
amounts of Collateral Support Deficit previously allocated to such
Classes, but not previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class A-M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class A-M
Certificates in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class A-M Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class A-M Certificates until all
amounts of Collateral Support Deficit previously allocated to the Class
A-M Certificates, but not previously reimbursed, have been reimbursed in
full;
(vii) seventh, to the Holders of Class A-J Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(viii) eighth, after the Certificate Balances of the Class A
Certificates and Class A-M Certificates have been reduced to zero, to the
Holders of the Class A-J Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates and the Class A-M Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class A-J Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
A-J Certificates but not previously reimbursed, have been reimbursed in
full;
(x) tenth, to the Holders of the Class B Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates and Class A-J Certificates have been
reduced to zero, to the Holders of the Class B Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates and Class A-J Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class B Certificates has been
reduced to zero;
(xii) twelfth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates and Class B
Certificates have been reduced to zero, to the Holders of the Class C
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, the Class A-J Certificates and Class B
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class C Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class C Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class C Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates and Class C Certificates have been reduced to zero, to the
Holders of the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates and Class C Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class D Certificates has
been reduced to zero;
(xviii) eighteenth, to the Holders of the Class D Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class D Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates and Class D Certificates have been
reduced to zero, to the Holders of the Class E Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates and Class D Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class E Certificates has been
reduced to zero;
(xxi) twenty-first, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates and Class E
Certificates have been reduced to zero, to the Holders of the Class F
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates and Class E Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class F Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates have been reduced to zero, to the
Holders of the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class G Certificates has been
reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class H Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates have been
reduced to zero, to the Holders of the Class H Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxx) thirtieth, to the Holders of the Class H Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class H Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
J Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates have been reduced to zero, to the
Holders of the Class K Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class K Certificates has been
reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class L Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates have been
reduced to zero, to the Holders of the Class L Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates a on such Distribution Date), until
the outstanding Certificate Balance of the Class L Certificates has been
reduced to zero;
(xxxix) thirty ninth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates and Class L
Certificates have been reduced to zero, to the Holders of the Class M
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and Class L Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
M Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class N Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates have been reduced to zero, to the
Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class N Certificates has been
reduced to zero;
(xlv) forty-fifth, to the Holders of the Class N Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class N Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class P Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates and Class N Certificates have been
reduced to zero, to the Holders of the Class P Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class P Certificates has been
reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class P Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class P Certificates, but not previously reimbursed, have been
reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(l) fiftieth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class P
Certificates have been reduced to zero, to the Holders of the Class NR
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class P Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
NR Certificates has been reduced to zero;
(li) fifty-first, to the Holders of the Class NR Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class NR Certificates, but not previously reimbursed, have been reimbursed
in full; and
(lii) fifty-second, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper Tier Distribution Account with respect to such Distribution Date.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, the Master Servicer shall promptly notify the Paying
Agent and the Paying Agent will use commercially reasonable efforts to cause DTC
to make the revised distribution on a timely basis on such Distribution Date.
None of the Master Servicer, the Special Servicer or the Paying Agent shall be
liable or held responsible for any resulting delay in the making of such
distribution to Certificateholders solely on the basis of the actions described
in the preceding sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit Amount in an amount equal to the
amount of principal or reimbursement Collateral Support Deficit actually
distributable to its respect Related Certificates as provided in Sections
4.01(a), 4.01(c) and 4.01(d). 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 Interest Distribution Amount in respect of
its Related Certificates and its related Component of the Class X Certificates,
in each case to the extent actually distributable thereon as provided in Section
4.01(a). For this purpose, interest distributed on the Class X Certificates
shall be treated as having been paid to its respective Components pro rata,
based on the interest accrued with respect thereto at its Class X Strip Rate.
Such amounts distributed to the Uncertificated Lower-Tier Interests in respect
of principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount," and shall be made
by the Paying Agent by deeming such Lower-Tier Distribution Amount to be
withdrawn from the Lower-Tier REMIC to be deposited in the Upper-Tier
Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto, as adjusted for the allocation of Collateral Support
Deficits, as provided in Sections 4.04(b) and 4.04(c) and of Certificate
Deferred Interest as provided in Section 4.06. The initial principal balance of
each Uncertificated Lower-Tier Interest equals the respective Original
Lower-Tier Principal Amount. The pass-through rate with respect to each
Uncertificated Lower-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and distribution of Yield Maintenance Charges pursuant to Section 4.01(d)(iii)
shall be distributed to the Holders of the Class LR Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-1A, Class A-3, Class A-4 and Class A-SB Certificates without regard to Loan
Group, based on their respective Certificate Balances immediately prior to such
Distribution Date, in reduction of their respective Certificate Balances, until
the Certificate Balance of each such Class is reduced to zero, and any amounts
representing reimbursements of Collateral Support Deficits previously allocated
to such Classes, if available, will be distributed pro rata based on their
respective Certificate Balances, without regard to Loan Group.
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Paying Agent to the following Classes: to the
Class A-1 Certificates, Class A-1A Certificates, Class A-3 Certificates, Class
A-4 Certificates, Class A-SB Certificates, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates and Class H
Certificates with respect to the related Loan Group (if applicable, in the case
of the Class A-1, Class A-1A, Class A-3, Class A-4, Class A-SB Certificates) on
each Distribution Date, 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, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates, Class P Certificates and Class NR
Certificates on such Distribution Date, (b) the Base Interest Fraction for the
related principal payment on such Class of Certificates, and (c) the aggregate
amount of Yield Maintenance Charges calculated by reference to a U.S. treasury
rate collected on such principal prepayments during the related Due Period. If
more than one such Class of Certificates is entitled to distributions of
principal with respect to the related Loan Group on any particular Distribution
Date on which Yield Maintenance Charges are distributable, the aggregate amount
of such Yield Maintenance Charges will be allocated among all such Classes up
to, and on a pro rata basis in accordance with, their respective entitlements
thereto in accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge
collected during the related Due Period remaining after such distributions will
be distributed to the holders of the Class X Certificates. Notwithstanding the
foregoing, any prepayment penalties collected that are based on a percentage of
the amount being prepaid will be distributed to the Class X Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class J, Class K, Class L, Class M, Class N, Class P, Class NR or
Residual Certificates. After the Certificate Balances of the Class A-1
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates, Class A-1A Certificates, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates and Class H Certificates have been reduced to zero, all Yield
Maintenance Charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class X Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates on each Distribution
Date pursuant to Section 4.01(d)(i) shall first be deemed to be
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect
of the Uncertificated Lower-Tier Interests, pro rata based upon the amount
of principal distributed in respect of each such Class of Uncertificated
Lower-Tier Interests for such Distribution Date pursuant to Section
4.01(b) above.
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates in order of distribution
priority (first deeming such amounts to be distributed with respect to the
Related Uncertificated Lower-Tier Interests) up to an amount equal to all
Collateral Support Deficits, if any, previously deemed allocated to them and
unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account will not
reduce the Certificate Balances of the Classes of Certificates receiving such
distributions. Any amounts remaining in the Gain-on-Sale Reserve Account after
such distributions shall be applied to offset future Collateral Support Deficits
and related Collateral Support Deficits and upon termination of the Trust Fund,
any amounts remaining in the Gain-on-Sale Reserve Account shall be distributed
to the Class LR Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to such Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
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 Paying
Agent, the Certificate Registrar, the Depositor, the Master Servicer, the
Special Servicer or the Underwriters 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
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(e), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit 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. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 12.05 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 Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) [Reserved].
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, the Companion Paying Agent shall make
withdrawals and payments from the Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05, to
the extent any such amounts relate solely to the Loan Pair related to such
Companion Loan, and such amounts are to be paid by the related Companion
Holder pursuant to the related Intercreditor Agreement;
(ii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Companion Distribution Account not required to be
deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s; Grant of Power of Attorney. (a) On each Distribution
Date, the Paying Agent shall make available to the general public a statement
(substantially in the form set forth as Exhibit G hereto and based on the
information supplied to the Paying Agent in the related CMSA Investor Reporting
Package (IRP) in accordance with CMSA guidelines) as to the distributions made
on such Distribution Date (each, a "Statement to Certificateholders") which
shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of P&I Advances as of the P&I
Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Paying Agent and servicing compensation paid to the Master Servicer
and the Special Servicer with respect to the Due Period for such
Determination Date together with detailed calculations of servicing
compensation paid to Master Servicer and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days to 119 days (and for each 30 day period thereafter until
liquidation), (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Yield Maintenance
Charges;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee since the previous Determination Date (or
in the case of the first Distribution Date, as of the Cut-off Date), with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxiii) a loan-by-loan listing of any material modification,
extension or waiver of a Mortgage Loan; and
(xxxiv) a loan-by-loan listing of any material breach of the
representations and warranties given with respect to a Mortgage Loan by
the applicable Mortgage Loan Seller.
In the case of information furnished pursuant to clauses (i), (ii),
(x) and (xi) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Definitive
Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
the general public via its website initially located at "xxx.xxxxxxxx.xxx" (i)
the related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement. In
addition, if the Depositor so directs the Paying Agent, and on terms acceptable
to the Paying Agent, the Paying Agent shall make certain other information and
reports related to the Mortgage Loans available through its internet website.
The Paying Agent shall make available to the Companion Holders all
reports via its internet website that the Paying Agent has made available to
Certificateholders under this Agreement.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" and the CMSA Operating Statement Analysis Report and CMSA NOI Adjusted
Worksheets and seven CMSA data files, the Realized Loss Report and CMSA Advance
Recovery Report to the extent delivered by the Master Servicer pursuant to this
Agreement and the Trustee's Exception Report as updated from time to time to the
extent delivered to the Paying Agent.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
internet website can be directed to the Paying Agent's CMBS customer service
desk at (000) 000-0000.
Each of the Master Servicer and the Special Servicer may, at its
sole cost and expense, make available by electronic media, bulletin board
service or internet website (in addition to making information available as
provided herein) any reports or other information the Master Servicer or the
Special Servicer, as applicable, is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder (which may be a licensed or registered investment
advisor) to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law. Notwithstanding
this paragraph, the availability of such information or reports on the internet
or similar electronic media shall not be deemed to satisfy any specific delivery
requirements in this Agreement except as set forth herein. In connection with
providing access to the Master Servicer's or the Special Servicer's internet
website, the Master Servicer or the Special Servicer, as applicable, shall take
reasonable measures to ensure that only such parties listed above may access
such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. The Master Servicer or
the Special Servicer, as applicable, shall not be liable for dissemination of
this information in accordance with this Agreement, provided that such
information otherwise meets the requirements set forth herein with respect to
the form and substance of such information or reports. The Master Servicer shall
be entitled to attach to any report provided pursuant to this subsection, any
reasonable disclaimer with respect to information provided, or any assumptions
required to be made by such report. Notwithstanding anything herein to the
contrary, the Master Servicer or the Special Servicer may, at its sole cost and
expense, make available by electronic media, bulletin board service or internet
website any reports or other information the Master Servicer or the Special
Servicer, as applicable, is required or permitted to provide to any Mortgagor
with respect to such Mortgagor's Mortgage Loan to the extent such action does
not conflict with the terms of this Agreement, the terms of the Mortgage Loans
or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Mortgage Loans and REO Properties as may be necessary for the Master
Servicer to prepare each report and any supplemental information to be provided
by the Master Servicer to the Paying Agent. Neither the Paying Agent nor the
Depositor shall have any obligation to recompute, verify or recalculate the
information provided thereto by the Master Servicer. Unless the Paying Agent has
actual knowledge that any report or file received from the Master Servicer
contains erroneous information, the Paying Agent is authorized to rely thereon
in calculating and making distributions to Certificateholders in accordance with
Section 4.01, preparing the statements to Certificateholders required by Section
4.02(a) and allocating Collateral Support Deficit to the Certificates in
accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the 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. 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) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the Master Servicer shall either (i) remit to
the Paying Agent for deposit into the Lower-Tier Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account, for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Certificate
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Certificate Account on or before the next
succeeding P&I Advance Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). The Master Servicer shall notify
the Paying Agent of (i) the aggregate amount of P&I Advances for a Distribution
Date and (ii) the amount of any Nonrecoverable P&I Advances for such
Distribution Date, on or before 2 Business Days prior to such Distribution Date.
If the Master Servicer fails to make a required P&I Advance by 4:00 p.m., New
York City time, on any P&I Advance Date, the Trustee shall make such P&I Advance
pursuant to Section 7.05 by noon, New York City time, on the related
Distribution Date, unless the Master Servicer shall have cured such failure (and
provided written notice of such cure to the Trustee and the Paying Agent) by
11:00 a.m. on such Distribution Date. In the event that the Master Servicer
fails to make a required P&I Advance hereunder, the Paying Agent shall notify
the Trustee of such circumstances by 4:30 p.m. (New York City time) on the
related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by the Master Servicer with respect to any Distribution Date
and each Mortgage Loan shall be equal to: (i) the Monthly Payments (net of
related Servicing Fees) other than Balloon Payments, that were due during the
related Due Period and delinquent as of the close of business on the Business
Day preceding the related P&I Advance Date (or not advanced by any Sub-Servicer
on behalf of the Master Servicer) and (ii) with respect to each Mortgage Loan as
to which the related Balloon Payment was due during or prior to the related Due
Period and was delinquent as of the end of the related Due Period (including any
REO Loan as to which the Balloon Payment would have been past due), an amount
equal to the Assumed Scheduled Payment therefor. Subject to subsection (c)
below, the obligation of the Master Servicer to make such P&I Advances is
mandatory, and with respect to any Mortgage Loan or REO Loan, shall continue
until the Distribution Date on which the proceeds, if any, received in
connection with a Liquidation Event or the disposition of the REO Property, as
the case may be, with respect thereto are to be distributed. No P&I Advances
shall be made with respect to a Companion Loan.
(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.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account, pursuant to Section 3.05(a), the Master Servicer shall be
entitled to pay the Trustee and itself (in that order of priority) as the case
may be out of any amounts then on deposit in the Certificate Account (but in no
event from any funds payable or allocable to the Bank of America Plaza Companion
Noteholder), interest at the Reimbursement Rate in effect from time to time,
accrued on the amount of such P&I Advance from the date made to but not
including the date of reimbursement; provided, however, that no interest will
accrue on any P&I Advance (i) made with respect to a Mortgage Loan until after
the related Due Date has passed and any applicable grace period has expired or
(ii) if the related Monthly Payment is received after the Determination Date but
on or prior to the related P&I Advance Date. The Master Servicer shall reimburse
itself and/or the Trustee, as the case may be, for any outstanding P&I Advance,
subject to Section 3.19 of this Agreement, as soon as practicably possible after
funds available for such purpose are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Master Servicer
nor the Trustee shall make an advance for Yield Maintenance Charges, Default
Interest or Penalty Charges and (ii) if an Appraisal Reduction has been made
with respect to any Mortgage Loan then in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Mortgage
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 (x) the amount of the interest portion of
such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicer or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Paying Agent shall calculate the amount,
if any, by which (i) 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 Workout-Delayed Reimbursement Amounts pursuant to
Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are
not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans
and any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates after giving effect to distributions of principal on
such Distribution Date and the allocation of Certificate Deferred Interest
pursuant to Section 4.06 (any such deficit, the "Collateral Support Deficit").
Any allocation of Collateral Support Deficit to a Class of Regular Certificates
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Collateral Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously allocated
Collateral Support Deficit will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made. To the extent any Nonrecoverable Advances (plus interest thereon) that
were reimbursed from principal collections on the Mortgage Loans and previously
resulted in a reduction of the Principal Distribution Amount, Loan Group 1
Principal Distribution Amount or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
that previously were allocated Collateral Support Deficit, in sequential order,
in each case up to the amount of the unreimbursed Collateral Support Deficit
allocated to such Class of Certificates. If the Certificate Balance of any Class
of Certificates is so increased, the amount of unreimbursed Collateral Support
Deficit of such Class of Certificates shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution Date. Any such write off shall be allocated
first, to the Class NR Certificates; second, to the Class P Certificates, third,
to the Class N Certificates, fourth, to the Class M Certificates, fifth, to the
Class L Certificates, sixth, to the Class K Certificates, seventh, to the Class
J Certificates, eighth, to the Class H Certificates, ninth, to the Class G
Certificates, tenth, to the Class F Certificates, eleventh, to the Class E
Certificates, twelfth, to the Class D Certificates, thirteenth, to the Class C
Certificates, fourteenth, to the Class B Certificates, fifteenth, to the Class
A-J Certificates, sixteenth, to the Class A-M Certificates, and seventeenth to
the Class A-1 Certificates, Class A-3 Certificates, Class A-4 Certificates,
Class A-SB Certificates and Class A-1A Certificates, pro rata (based upon their
respective Certificate Balances and without regard to Loan Groups), until the
remaining Certificate Balances of such Classes of Certificates have been reduced
to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates (other than the Class X, Class R
and Class LR Certificates) pursuant to Section 4.04(b) or Section 4.04(d),
respectively, with respect to such Distribution Date shall reduce the Lower-Tier
Principal Amount of the Related Uncertificated Lower-Tier Interest with respect
thereto as a write-off.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Paying Agent on each Distribution Date, only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, to the Certificate Balance of the Class NR, Class P, Class N,
Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D,
Class C, Class B, Class A-J and Class A-M Certificates, in that order, up to the
amount of their respective Certificate Balances. On any Distribution Date, an
Appraisal Reduction that otherwise would be allocated to a Class of Certificates
will be allocated to the next most subordinate Class to the extent that the
Certificate Balance on such Distribution Date for such Class of Certificates
(prior to taking the Appraisal Reduction into account) is less than the
Appraisal Reduction for such Distribution Date.
With respect to any AB Mortgage Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of such AB
Mortgage Loan and the related Companion Loan. Any resulting Appraisal Reductions
with respect to any AB Mortgage Loan will be allocated to the related Companion
Loan up to the principal amount of such Companion Loan prior to being allocated
to the AB Mortgage Loan.
With respect to the Bank of America Plaza Whole Loan, Appraisal
Reductions will be calculated based on the aggregate outstanding principal
balance of the Bank of America Plaza Mortgage Loan and the Bank of America Plaza
Companion Note. Any resulting Appraisal Reductions will be allocated, pro rata,
to the Bank of America Plaza Mortgage Loan and the Bank of America Plaza
Companion Note, based on their Stated Principal Balances.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Regular Certificates
(other than the Class X Certificates) shall be reduced by an amount equal to the
amount of Mortgage Deferred Interest for all Mortgage Loans for the Due Dates
occurring in the related Due Period allocated to such Class of Certificates such
Mortgage Deferred Interest to be allocated first, to the Class NR Certificates,
second, to the Class P Certificates, third, to the Class N Certificates, fourth,
to the Class M Certificates, fifth, to the Class L Certificates, sixth, to the
Class K Certificates, seventh, to the Class J Certificates, eighth, to the Class
H Certificates, ninth, to the Class G Certificates, tenth, to the Class F
Certificates, eleventh, to the Class E Certificates, twelfth, to the Class D
Certificates, thirteenth, to the Class C Certificates, fourteenth, to the Class
B Certificates, fifteenth, to the Class A-J Certificates, sixteenth, to the
Class A-M Certificates and then pro rata (based upon Accrued Certificate
Interest) to the Class A-1, Class A-1A, Class A-3, Class A-4 and Class A-SB
Certificates, in each case up to the respective Accrued Certificate Interest for
each such Class of Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-1A Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates, Class P Certificates and Class NR
Certificates shall be increased by the amount of the Certificate Deferred
Interest allocated to such Class of Certificates on such Distribution Date
pursuant to Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto. On each Distribution Date, to the extent provided in Section
4.06(b) with respect to the Related Certificates, Certificate Deferred Interest
will be added to the Lower-Tier Principal Amount of the Uncertificated
Lower-Tier Interests in the same manner as the interest thereon was reduced
pursuant to the preceding sentence.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-24. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class R and Class LR
Certificates will each be issuable in one or more registered, definitive
physical certificates (each, a "Definitive Certificate") substantially in the
form of Certificates of each Class and with such applicable legends as are set
forth in the Exhibits hereto corresponding to such Class. Each Certificate will
share ratably in all rights of the related Class. The Class X Certificates will
be issuable only in minimum Denominations of authorized initial Notional Amount
of not less than $1,000,000 and in integral multiples of $1.00 in excess
thereof. The Offered Certificates (other than the Class X Certificates) will be
issuable only in minimum Denominations of authorized initial Certificate Balance
of not less than $10,000, and in integral multiples of $1.00 in excess thereof.
The Non-Registered Certificates (other than the Residual Certificates) will be
issuable in minimum Denominations of authorized initial Certificate Balance of
not less than $250,000, and in integral multiples of $1.00 in excess thereof. If
the Original Certificate Balance or initial Notional Amount, as applicable, of
any Class does not equal an integral multiple of $1.00, then a single additional
Certificate of such Class may be issued in a minimum denomination of authorized
initial Certificate Balance or initial Notional Amount, as applicable, that
includes the excess of (i) the Original Certificate Balance or initial Notional
Amount, as applicable, of such Class over (ii) the largest integral multiple of
$1.00 that does not exceed such amount. The Class R and Class LR Certificates
will be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (a) set forth on the face thereof or, (b) set
forth on a schedule attached thereto or (c) in the case of any beneficial
interest in a Book-Entry Certificate, the interest of the related Certificate
Owner in the applicable Class of Certificates as reflected on the books and
records of the Depository or related Participants, as applicable, (ii) expressed
in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. LaSalle
Bank National Association is hereby initially appointed Authenticating Agent
with power to act, on the Trustee's behalf, in the authentication and delivery
of the Certificates in connection with transfers and exchanges as herein
provided. If LaSalle Bank National Association is removed as Paying Agent, then
LaSalle Bank National Association shall be terminated as Authenticating Agent.
If the Authenticating Agent is terminated, the Trustee shall appoint a successor
Authenticating Agent, which may be the Trustee or an Affiliate thereof.
(b) LaSalle Bank National Association maintains an office and
conducts certificate transfer services at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services,
JPMorgan 2006-CIBC17.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. LaSalle Bank
National Association is hereby initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Depositor, the Trustee, the Paying Agent, the
Special Servicer and the Master Servicer, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. The Depositor, the Trustee, the Master Servicer and
the Special Servicer shall have the right to inspect the Certificate Register or
to obtain a copy thereof at all reasonable times, and to rely conclusively upon
a certificate of the Certificate Registrar as to the information set forth in
the Certificate Register. The names and addresses of all Certificateholders and
the names and addresses of the transferees of any Certificates shall be
registered in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Master
Servicer, the Paying Agent, the Trustee, the Special Servicer and any agent of
any of them shall not be affected by any notice or knowledge to the contrary. A
Definitive Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at its office maintained at
LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services,
JPMorgan 2006-CIBC17 (the "Registrar Office") together with an assignment and
transfer (executed by the Holder or his duly authorized attorney). Subject to
the requirements of Sections 5.02(b), (c) and (d), the Certificate Registrar
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
Denominations of a like aggregate Denomination as the Definitive Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e). Each Certificate surrendered for
registration of transfer shall be canceled, and the Certificate Registrar shall
hold such canceled Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchaser to American
Capital Strategies, Ltd.) is to be made in reliance upon an exemption from the
Securities Act, and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Registrar Office of (1) the Definitive Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(d),
(2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in such Regulation
S Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (3) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (4) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate, a Regulation S Transfer Certificate
from the transferor or (y) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, if delivery is to be taken in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder, and the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall increase the
Denomination of the Regulation S Book-Entry Certificate or the Rule 144A
Book-Entry Certificate, as the case may be, by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who,
in the case of any increase in the Regulation S Book-Entry Certificate
during the Restricted Period, shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
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 SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501
(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (d) (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a representation
letter from the proposed purchaser or transferee of such Certificate
substantially in the form of Exhibit F attached hereto, to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or a plan subject to Section
4975 of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
or a church plan (as defined in Section 3(33) of ERISA) for which no election
has been made under Section 410(d) of the Code subject to any federal, state or
local law ("Similar Law") which is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each, a "Plan") or (b) a person
acting on behalf of or using the assets of any such Plan (including an entity
whose underlying assets include Plan assets by reason of investment in the
entity by such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60 or (ii) if such Certificate which
may be held only by a person not described in (a) or (b) above, is presented for
registration in the name of a purchaser or transferee that is any of the
foregoing, an Opinion of Counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Paying Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriters, the Initial Purchaser or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in the Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any ERISA Restricted Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or in the case of an ERISA Restricted Certificate,
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Underwriters, the Initial Purchaser, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
ERISA Restricted Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer or the Special Servicer, as applicable, will make available, or
cause to be made available, upon request, to any Holder and any Person to whom
any such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Master Servicer, the Special Servicer or the Mortgage Loans
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual 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 Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicer, the Trustee and the Certificate Registrar of any change or
impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) 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 Residual
Certificate. None of the Trustee, the Master Servicer, the Authenticating
Agent and the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(c) 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;
provided, however, that the Certificate Registrar shall be under such
liability for a registration of Transfer of a Residual Certificate if it
has actual knowledge that the proposed Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person in violation of Section 5.02(c)(i)(C) above or is not a Permitted
Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class D or Class X Certificates) or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that such
holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Definitive
Certificate or beneficial interest in such Book-Entry Certificate to an Eligible
Investor within 14 days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(f) The Certificate Registrar shall provide an updated copy of the
Certificate Register to the Trustee, the Paying Agent, the Master Servicer, the
Special Servicer and the Depositor upon written request.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to 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 brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent 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, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Trustee, the
Paying Agent, the Special Servicer, the Authenticating Agent and 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 Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Master Servicer, on the Trustee's behalf, has been directed to institute any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate Registrar will execute, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
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
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 Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the 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 presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Special Servicer, the Paying Agent, the Trustee, the Certificate Registrar
and any agents of any of them may treat the person in whose name such
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, except as and to the extent provided in the definition of
"Certificateholder," and none of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Certificate Registrar and any agent
of any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Paying Agent shall make such determination
based on a certificate of such Person which shall be addressed to the Paying
Agent and shall specify, in reasonable detail satisfactory to the Paying Agent,
such Person's name and address, the Class and Certificate Balance or Notional
Amount of the Regular Certificate beneficially owned, and any intermediaries
through which such Person's interest in such Regular Certificate is held (any
such certification, other than one which the Paying Agent shall refuse to
recognize pursuant to the following procedures, a "Certificate Ownership
Certification"); provided, however, that the Paying Agent shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the actual
knowledge of a Responsible Officer of such party, acquired its interest in a
Regular Certificate in violation of the transfer restrictions herein, or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Paying Agent from the Depository or any Depository
Participant with respect to the identity of a Certificate Owner; provided,
however, that to the extent the Paying Agent is required to obtain such
Certificate Owner information from the Depository or any Depository Participant,
the Paying Agent shall be reimbursed for any cost or expense in obtaining such
information from the Distribution Account. The Paying Agent may conclusively
rely on such Certificate Ownership Certification. The Master Servicer will only
be required to acknowledge the status of any Person as a Certificateholder or
Certificate Owner to the extent that the Paying Agent, at the request of the
Master Servicer, identifies such Person as a Certificateholder or Certificate
Owner.
Section 5.07 Appointment of Paying Agent. (a) LaSalle Bank National
Association is hereby initially appointed Paying Agent to act on the Trustee's
behalf in accordance with the terms of this Agreement. If the Paying Agent
resigns or is terminated, the Trustee shall appoint a successor Paying Agent
which may be the Trustee or an Affiliate thereof to fulfill the obligations of
the Paying Agent hereunder which must be (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers under this Agreement, having a
combined capital and surplus of at least $100,000,000 and subject to supervision
or examination by federal or state authority and shall not be an Affiliate of
the 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-" by S&P and
"Aa3" by Xxxxx'x (or such entity as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any of
the ratings then assigned thereby to the Certificates or any class of Bank of
America Plaza Securities); provided that the Paying Agent shall not cease to be
eligible to serve as such based on a failure to satisfy such rating requirements
so long as the Paying Agent maintains a long-term unsecured debt rating of no
less than "A" from S&P and "A2" from Xxxxx'x (or such rating as would not, as
evidenced in writing by such Rating Agency, result in a qualification,
downgrading or withdrawal of any of the ratings assigned to the Certificates or
any class of Bank of America Plaza Securities).
(b) The Paying Agent 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.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the 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.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent 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 Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Master Servicer or the Special Servicer or of the
Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
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 and the Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicer and the Special Servicer each will
keep in full effect its existence, rights and franchises as an entity under the
laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign 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) The Depositor, the Master Servicer and the Special Servicer each
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, the Master Servicer or the
Special Servicer, shall be the successor of the Depositor, the Master Servicer
and the Special Servicer (such Person, in the case of the Master Servicer or the
Special Servicer, in each of the foregoing cases, the "Surviving Entity"), as
the case may be, hereunder, without the execution or filing of any paper (other
than an assumption agreement wherein the successor shall agree to perform the
obligations of and serve as the Depositor, the Master Servicer or the Special
Servicer, as the case may be, in accordance with the terms of this Agreement) or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that such merger, consolidation or
succession will not result in a withdrawal, downgrading or qualification of the
then-current ratings of the Classes of Certificates or any class of the Bank of
America Plaza Securities that have been so rated (as evidenced by a letter to
such effect from each Rating Agency); provided, further however, that for so
long as the Trust, and, with respect to any Companion Loan included as part of
the trust in a related Other Securitization, is subject to the reporting
requirements of the Exchange Act, if the Master Servicer or the Special Servicer
notifies the Depositor in writing (a "Merger Notice") of any such merger,
consolidation, conversion or other change in form, and the Depositor or the
depositor in such Other Securitization, as the case may be, notifies the Master
Servicer or the Special Servicer, as applicable, in writing that the Depositor
or the depositor in such Other Securitization, as the case may be, has
discovered that such successor entity has not complied with its Exchange Act
reporting obligations under any other commercial mortgage loan securitization
(and specifically identifying the instance of noncompliance), then it shall be
an additional condition to such succession that the Depositor shall have
consented (which consent shall not be unreasonably withheld or delayed) to such
successor entity. If, within 60 days following the date of delivery of the
Merger Notice to the Depositor, the Depositor shall have failed to notify the
Master Servicer or the Special Servicer, as applicable, in writing of the
Depositor's determination to grant or withhold such consent, such failure shall
be deemed to constitute a grant of such consent. If the conditions to the
provisions in the second preceding sentence are not met, the Trustee may
terminate, and if the conditions set forth in the second proviso of the second
preceding sentence are not met the Trustee shall terminate, the applicable
Surviving Entity's servicing of the Mortgage Loans pursuant hereto, such
termination to be effected in the manner set forth in Section 7.01.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others. (a) None of the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates or any of the
directors, officers, employees or agents of any of the foregoing shall be under
any liability to the Trust, the Certificateholders or the Companion Holders 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
(i) this provision shall not protect the Depositor, the Master Servicer, the
Special Servicer and their respective Affiliates or any such Person 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 (including in its
capacity as Companion Paying Agent) and the Special Servicer and their
respective Affiliates and any director, officer, member, manager, employee or
agent of the Depositor, the Master Servicer or the Special Servicer and their
respective Affiliates may rely 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 (including in its capacity as
Companion Paying Agent), the Special Servicer and their respective Affiliates
and any director, officer, employee or agent of any of the foregoing shall be
indemnified and held harmless by the Trust against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action (whether in equity or at law) or claim relating
to this Agreement, the Mortgage Loans, the Companion Loans or the Certificates,
other than any loss, liability or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof; (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. Each of the
Master Servicer and the Special Servicer may rely, 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, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format) as
contemplated by and in accordance with this Agreement and reasonably believed or
in good faith believed by the Master Servicer or the Special Servicer to be
genuine and to have been signed or presented by the proper party or parties and
each of them may consult with counsel, in which case any written advice of
counsel 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 and in accordance with such advice or Opinion of
Counsel.
(b) None of the Depositor, the Master Servicer and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action (whether in equity or at law), proceeding,
hearing or examination that is not incidental to its respective duties under
this Agreement or which in its opinion may involve it in any expense or
liability not recoverable from the Trust Fund; provided, however, that the
Depositor, the Master Servicer or the Special Servicer 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 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 and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans and Companion Loans on deposit in the
Certificate Account, as provided by Section 3.05(a).
(c) Each of the Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent, the Bank of America
Plaza Companion Noteholder and the Trust and any director, officer, employee or
agent thereof, and hold them harmless, from and against any and all claims,
losses, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other 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 herein; provided that such indemnity
shall not cover indirect or consequential damages. The Trustee, the Paying Agent
or the Depositor, as the case may be, 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
to indemnification hereunder, whereupon the Master Servicer or the Special
Servicer, as the case may be, shall assume the defense of such claim (with
counsel reasonably satisfactory to the Trustee, the Paying Agent or the
Depositor) 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 the Special Servicer, as the case may be, shall not
affect any rights any of the foregoing Persons may have to indemnification under
this Agreement or otherwise, unless the Master Servicer's, or the Special
Servicer's, as the case may be, defense of such claim is materially prejudiced
thereby.
(d) Each of the Trustee and the Paying Agent, respectively agrees to
indemnify the Master Servicer and the Special Servicer and any director,
officer, employee or agent thereof, and hold them harmless, from and against any
and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and any other 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 Trustee or the Paying Agent,
respectively, in the performance of its obligations and duties under this
Agreement or by reason of negligent disregard by the Trustee or the Paying
Agent, respectively, of its duties and obligations hereunder or by reason of
breach of any representations or warranties made herein; provided, that such
indemnity shall not cover indirect or consequential damages. The Master Servicer
or the Special Servicer, as the case may be, shall immediately notify the
Trustee and the Paying Agent, respectively, if a claim is made by a third party
with respect to this Agreement, whereupon the Trustee or the Paying Agent shall
assume the defense of such claim (with counsel reasonably satisfactory to the
Master Servicer or the Special Servicer) 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 or the Paying Agent shall not affect
any rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Trustee's or the Paying Agent's defense of
such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify the Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
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
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Master Servicer or the Special Servicer, as the
case may be, shall immediately notify the Depositor if a claim is made by a
third party with respect to this Agreement, whereupon the Depositor shall assume
the defense of such claim (with counsel reasonably satisfactory to the Master
Servicer or the Special Servicer) 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 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 and the termination or resignation of the Master Servicer, the
Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign. Subject to the provisions of Section 6.02, neither the Master Servicer
nor the Special Servicer shall resign from their respective obligations and
duties hereby imposed on each of them except upon (a) determination that such
party's duties hereunder are no longer permissible under applicable law or (b)
in the case of the Master Servicer, upon the appointment of, and the acceptance
of such appointment by, a successor Master Servicer and receipt by the Trustee
of written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates or any class of Bank of America Plaza Companion Loan
Securities. Only the Master Servicer shall be permitted to resign pursuant to
clause (b) above. Any such determination permitting the resignation of the
Master Servicer or the Special Servicer pursuant to clause (a) above shall be
evidenced by an Opinion of Counsel (at the expense of the resigning party) to
such effect delivered to the Trustee and the Directing Certificateholder. No
such resignation by the Master Servicer or the Special Servicer shall become
effective until the Trustee or a successor Master Servicer or successor Special
Servicer, as applicable, shall have assumed the Master Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Upon any termination or resignation of the Master Servicer
hereunder, the Master Servicer shall have the right and opportunity to appoint
any successor Master Servicer with respect to this Section 6.04, provided that
such successor Master Servicer is approved by the Directing Certificateholder,
such approval not to be unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicer and the Special Servicer. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer and the Special
Servicer hereunder or exercise the rights of the Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, that the Master Servicer
and the Special Servicer shall not be relieved of any of their respective
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 The Master Servicer and the Special Servicer as
Certificate Owner. The Master Servicer, the Special Servicer or any Affiliate
thereof 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 thereof.
Section 6.07 The Directing Certificateholder. The Directing
Certificateholder shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer, with
respect to Non-Specially Serviced Mortgage Loans, as to all matters for which
the Master Servicer must obtain the consent or deemed consent of the Special
Servicer, and the Master Servicer with respect to Non-Specially Serviced
Mortgage Loans as to which the Master Servicer must obtain the consent or deemed
consent of the Directing Certificateholder, and (3) the Special Servicer with
respect to all Mortgage Loans for which an extension of maturity is being
considered by the Special Servicer or by the Master Servicer subject to consent
or deemed consent of the Special Servicer, and notwithstanding anything herein
to the contrary, except as set forth in, and in any event subject to, Section
3.08(f) and the second and third paragraphs of this Section 6.07, both (a) the
Master Servicer will not be permitted to take any of the following actions
unless it has obtained the consent of the Special Servicer (which will be deemed
granted if the Special Servicer does not respond within a specified number of
days following the Master Servicer's delivery of certain notice and other
information) and (b) the Special Servicer will not be permitted to consent to
the Master Servicer's taking any of the following actions, nor will the Special
Servicer itself be permitted to take any of the following actions, as to which
the Directing Certificateholder has objected in writing within ten (10) Business
Days of being notified thereof (provided that if such written objection has not
been received by the Master Servicer or the Special Servicer, as applicable,
within such ten (10) Business Day period, then the Directing Certificateholder
will be deemed to have waived its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs
but excluding waiver of Default Interest or late payment charges) of a
Mortgage Loan or any extension of the maturity date of any Mortgage Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price (other than in connection with the exercise
of the Purchase Option);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan and for which there is no material lender
discretion;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the Mortgagor or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes (with respect to a
Mortgage Loan with a principal balance greater than $2,500,000) or
franchise changes for which the lender is required to consent or approve
under the Mortgage Loan documents;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves other than those required
pursuant to the specific terms of the related Mortgage Loan and for which
there is no material lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default;
provided that, in the event that the Special Servicer or Master Servicer (in the
event the Master Servicer is otherwise authorized by this Agreement to take such
action), as applicable, determines that immediate action is necessary to protect
the interests of the Certificateholders (as a collective whole), the Special
Servicer or Master Servicer, as applicable may take any such action without
waiting for the Directing Certificateholder's response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of the related Companion Holder to advise the Special Servicer with
respect to the related Loan Pair pursuant to the terms of the related
Intercreditor Agreement, may direct the Special Servicer to take, or to refrain
from taking, such other actions with respect to a Mortgage Loan, as the
Directing Certificateholder may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary, no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
any Mortgage Loan, applicable law, this Agreement or the REMIC Provisions,
including without limitation the Special Servicer's obligation to act in
accordance with the Servicing Standards, or expose the Master Servicer, the
Special Servicer, the Paying Agent, the Trust Fund or the Trustee to liability,
or materially expand the scope of the Special Servicer's responsibilities
hereunder or cause the Special Servicer to act, or fail to act, in a manner
which in the reasonable judgment of the Special Servicer is not in the best
interests of the Certificateholders.
In the event the Special Servicer or Master Servicer, as applicable,
determines that a refusal to consent by the Directing Certificateholder or any
advice from the Directing Certificateholder would otherwise cause the Special
Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage
Loan, applicable law or this Agreement, including without limitation, the
Servicing Standards, the Special Servicer or Master Servicer, as applicable,
shall disregard such refusal to consent or advise and notify the Directing
Certificateholder, the Trustee and the Rating Agencies of its determination,
including a reasonably detailed explanation of the basis therefor. The taking
of, or refraining from taking, any action by the Master Servicer or Special
Servicer in accordance with the direction of or approval of the Directing
Certificateholder that does not violate any law or the Servicing Standards or
any other provisions of this Agreement, will not result in any liability on the
part of the Master Servicer or the Special Servicer.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action, or for errors in judgment; provided, however, that the
Directing Certificateholder shall not be protected against any liability to a
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates including the Holders of the Controlling Class over
other Classes of the Certificates, and that the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
some Classes of the Certificates, that the Directing Certificateholder may act
solely in the interests of the Holders of the Controlling Class, including the
Holders of the Controlling Class that the Directing Certificateholder does not
have any duties or liability to the Holders of any Class of Certificates other
than the Controlling Class, that the Directing Certificateholder shall not be
liable to any Certificateholder, by reason of its having acted solely in the
interests of the Holders of the Controlling Class including the Holders of the
Controlling Class, and that the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination. (a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make any deposit
required to be made by the Master Servicer to the Certificate Account on
the day and by the time such deposit is required to be made under the
terms of this Agreement, which failure is not remedied within one Business
Day or (B) any failure by the Master Servicer to deposit into, or remit to
the Paying Agent for deposit into, any Distribution Account any amount
required to be so deposited or remitted, which failure is not remedied by
11:00 a.m. (New York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Master Servicer for deposit into the Certificate
Account or to deposit into, or to remit to the Paying Agent for deposit
into, the Lower-Tier Distribution Account any amount required to be so
deposited or remitted by the Special Servicer pursuant to, and at the time
specified by, the terms of this Agreement; or
(iii) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (or (A) with respect to any year that a
report on Form 10-K is required to be filed, 5 Business Days in the case
of the Master Servicer's or Special Servicer's, as applicable, obligations
contemplated by Article XX, (X)00 days in the case of the Master
Servicer's failure to make a Servicing Advance or (C) 15 days in the case
of a failure to pay the premium for any insurance policy required to be
maintained hereunder) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A) to
the Master Servicer or the Special Servicer, as the case may be, by any
other party hereto, or (B) to the Master Servicer or the Special Servicer,
as the case may be, with a copy to each other party to this Agreement, by
the Holders of Certificates evidencing Percentage Interests aggregating
not less than 25% or, solely as it relates to the servicing of the Bank of
America Plaza Whole Loan, by the Bank of America Plaza Companion
Noteholder; provided, however, if such failure is capable of being cured
and the Master Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30-day period will be extended an additional 30
days; or
(iv) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders or Companion Holders and
which continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been
given to the Master Servicer or the Special Servicer, as the case may be,
by the Depositor, the Paying Agent or the Trustee, or to the Master
Servicer, the Special Servicer, the Depositor, the Paying Agent and the
Trustee by the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% or, solely as it relates to the servicing of
the Bank of America Plaza Whole Loan, by the Bank of America Plaza
Companion Noteholder; provided, however, if such breach is capable of
being cured and the Master Servicer or Special Servicer, as applicable, is
diligently pursuing such cure, such 30-day period will be extended an
additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(vi) 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, marshaling
of assets and liabilities or similar proceedings of or relating to the
Master Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) 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
(viii) a Servicing Officer of the Master Servicer or Special
Servicer, as applicable, obtains actual knowledge that Xxxxx'x has (A)
qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (B) has placed one or more Classes of
Certificates on "watch status" in contemplation of a ratings downgrade or
withdrawal (and such "watch status" placement shall not have been
withdrawn within 60 days of the date such Servicing Officer obtained such
actual knowledge) and, in the case of either of clauses (A) or (B), cited
servicing concerns with the Master Servicer or Special Servicer, as
applicable, as the sole or material factor in such rating action; or
(ix) the Trustee has received a written notice from Fitch (which the
Trustee is required to promptly forward to the Master Servicer or the
Special Servicer, as applicable), to the effect that if the Master
Servicer or the Special Servicer, as applicable, continues to act in such
capacity, the rating or ratings on one or more Classes of Certificates
will be downgraded or withdrawn, citing servicing concerns relating to the
Master Servicer or the Special Servicer, as the case may be, as the sole
or material factor in such action; provided, such Master Servicer or the
Special Servicer, as applicable, shall have ninety (90) days to resolve
such matters to the satisfaction of Fitch (or such longer time period as
may be agreed to in writing by Fitch) prior to the replacement of the
Master Servicer or the Special Servicer or the downgrade of any Class of
Certificates; or
(x) the Master Servicer or Special Servicer is no longer rated at
least "CMS3" or "CSS3", respectively, by Fitch, and is not restored to
such rating within 90 days of such delisting; or
(xi) the Master Servicer or the Special Servicer is no longer listed
on S&P's Select Servicer List as a U.S. Commercial Mortgage Master
Servicer or a U.S. Commercial Mortgage Special Servicer, as applicable,
and is not reinstated to S&P's Select Servicer List within 60 days of such
removal.
(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 such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction of the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, that the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, 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 with respect to a
termination of the Master Servicer and to the Master Servicer with respect to a
termination of the Special Servicer pursuant to and under this Section, and,
without limitation, the Trustee or Master Servicer, as applicable, 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 Special
Servicer each agree that if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than 20 Business Days subsequent to
its receipt of the notice of termination) provide the Trustee or the Master
Servicer, as applicable, with all documents and records requested by it to
enable it to assume the Master Servicer's or the Special Servicer's, as the case
may be, functions hereunder, and shall cooperate with the Trustee or the Master
Servicer, as applicable, in effecting the termination of the Master Servicer's
or the Special Servicer's, as the case may be, responsibilities and rights
(subject to Section 3.11 and Section 6.03) hereunder, including, without
limitation, the transfer within 5 Business Days to the Trustee or the Master
Servicer, as applicable, for administration by it of all cash amounts which
shall at the time be or should have been credited by the Master Servicer to the
Certificate Account or any Servicing Account (if it is the Defaulting Party) or
by the Special Servicer to the REO Account (if it is the Defaulting Party) or
thereafter be received with respect to the Mortgage Loans or any REO Property
(provided, however, that the Master Servicer and the Special Servicer each
shall, if terminated pursuant to this Section 7.01(b), continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, whether in respect of Advances (in the case of
the Special Servicer or the Master Servicer) or otherwise, and it and its
Affiliates and the directors, managers, officers, members, employees and agents
of it and its Affiliates shall continue to be entitled to the benefits of
Section 3.11 and Section 6.03 notwithstanding any such termination).
(c) If the Master Servicer receives notice of termination under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(viii)
through (xi), or solely due to an Event of Default under Section 7.01(a)(iii)
arising from a breach of the covenant set forth in Section 7.01(f), and if the
Master Servicer to be terminated pursuant to Section 7.01(b) provides the
Trustee with the appropriate "request for proposal" materials within five (5)
Business Days following such termination notice, then the Master Servicer shall
continue to service as Master Servicer hereunder until a successor Master
Servicer is selected in accordance with this Section 7.01(c). Upon receipt of
the "request for proposal" materials, Trustee shall promptly thereafter (using
such "request for proposal" materials provided by the Master Servicer pursuant
to Section 7.01(b)) solicit good faith bids for the rights to service the
Mortgage Loans and Companion Loans under this Agreement from at least three (3)
Persons qualified to act as Master Servicer hereunder in accordance with
Sections 6.02 and 7.02 (any such Person so qualified, a "Qualified Bidder") or,
if three (3) Qualified Bidders cannot be located, then from as many persons as
the Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the Master Servicer shall supply the Trustee with the names of Persons
from whom to solicit such bids; and provided, further, that the Trustee shall
not be responsible if less than three (3) or no Qualified Bidders submit bids
for the right to service the Mortgage Loans and Companion Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the notice of termination of the Master Servicer. The materials provided
to the Trustee shall provide for soliciting bids: (i) on the basis of such
successor Master Servicer retaining all Sub-Servicers to continue the primary
servicing of the Mortgage Loans and Companion Loans pursuant to the terms of the
respective Sub-Servicing Agreements (each, a "Servicing-Retained Bid"); and (ii)
on the basis of terminating each Sub-Servicing Agreement and Sub-Servicer that
it is permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash
Servicing-Released Bid) (the "Successful Bidder") to act as successor Master
Servicer hereunder; provided, however, that if the Trustee does not receive
confirmation in writing by each Rating Agency that the appointment of such
Successful Bidder as successor Master Servicer will not result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any class of Certificates or the Bank of America Plaza Companion Loan
Securities within 10 days after the selection of such Successful Bidder, then
the Trustee shall repeat the bid process described above (but subject to the
above-described 45-day time period) until such confirmation is obtained. The
Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof no later than 45 days
after notice of the termination of the Master Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the Master Servicer to be terminated
pursuant to Section 7.01(b), the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The Master Servicer to be terminated pursuant to Section 7.01(b)
shall be responsible for all out-of-pocket expenses incurred in connection with
the attempt to sell its rights to service the Mortgage Loans, which expenses are
not reimbursed to the party that incurred such expenses pursuant to the
preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
Master Servicer to be terminated pursuant to Section 7.01(b) shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
Notwithstanding Section 7.01(b), if any Event of Default on the part
of the Master Servicer shall occur and be continuing that affects the Bank of
America Plaza Whole Loan or any Bank of America Plaza Companion Loan Securities,
then, so long as such Event of Default shall not have been remedied, the trustee
appointed under the Bank of America Plaza Companion Note pooling and servicing
agreement shall be entitled to direct the Trustee, and the Trustee shall be
entitled, to terminate all of the rights and obligations of the Master Servicer
and appoint a replacement master servicer solely with respect to the Bank of
America Plaza Whole Loan. The replacement master servicer shall be selected by
the Majority Controlling Class Certificateholder and the related Directing
Certficateholder, provided that if such holders are not able to agree on a
replacement master servicer within 30 days following notice of such Event of
Default, such replacement master servicer shall be selected by the Majority
Controlling Class Certificateholder. Any such replacement master servicer under
this paragraph shall meet the eligibility requirements of Section 7.02 and the
eligibility requirements of the Bank of America Plaza Companion Note pooling and
servicing agreement. Any appointment of a replacement master servicer in
accordance with this paragraph shall be subject to the receipt of a Rating
Agency confirmation with respect to the Certificates and the Bank of America
Plaza Companion Loan Securities. In addition, if the Trustee appoints a
replacement master servicer solely with respect to the Bank of America Plaza
Whole Loan, the Master Servicer shall not be liable for any losses incurred due
to the actions of such replacement master servicer.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Master Servicer, the Paying
Agent and the Trustee; such termination to be effective upon the appointment of
a successor Special Servicer meeting the requirements of this Section 7.01(d).
Upon a termination or resignation of such Special Servicer, the Directing
Certificateholder shall appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then-current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated or, insofar as there is then outstanding any class of Bank of
America Plaza Companion Loan Securities that is then rated by such Rating
Agency, in a similar event with respect to such class of Bank of America Plaza
Companion Loan Securities.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to this Section 7.01(d). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
(f) The Master Servicer and Special Servicer shall, as the case may
be, from time to time, take all such reasonable actions as are required by it in
accordance with the related Servicing Standards in order to prevent the
Certificates from being placed on "watch" status or downgraded due to servicing
or special servicing, as applicable, concerns by any Rating Agency. In no event
shall the remedy for a breach of the foregoing covenant extend beyond
termination pursuant to Section 7.01(a)(iii) and the resulting operation of
Section 7.01(b) and (c) and the payment by the terminated Master Servicer (or
the netting from the proceeds of the bid from a Successful Bidder) of "out of
pocket" expenses incurred in connection with obtaining bids and/or transferring
servicing. The operation of this subsection (f) shall not be construed to limit
the effect of Section 7.01(a)(viii), (ix), (x) or (xi).
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(b), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the Master
Servicer and the Master Servicer shall be the successor to the Special Servicer,
until such successor to the Special Servicer is appointed by the Directing
Certificateholder as provided in Section 7.01(d), as applicable, in all respects
in its capacity as Master Servicer or Special Servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to, and
have the benefit of, all of the rights, (subject to Section 3.11 and Section
6.03) benefits, responsibilities, duties, liabilities and limitations on
liability relating thereto and that arise thereafter placed on or for the
benefit of the Master Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that any failure to perform such duties or
responsibilities caused by the terminated party's failure under Section 7.01 to
provide information or moneys required hereunder shall not be considered a
default by such successor hereunder. The appointment of a successor Master
Servicer shall not affect any liability of the predecessor Master Servicer which
may have arisen prior to its termination as Master Servicer, and the appointment
of a successor Special Servicer shall not affect any liability of the
predecessor Special Servicer which may have arisen prior to its termination as
Special Servicer. The Trustee or Master Servicer, as applicable, in its capacity
as successor to the Master Servicer or the Special Servicer, as the case may be,
shall not be liable for any of the representations and warranties of the Master
Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Master
Servicer or Special Servicer or for any losses incurred by the predecessor
Master Servicer pursuant to Section 3.06 hereunder, nor shall the Trustee or the
Master Servicer, as applicable, be required to purchase any Mortgage Loan
hereunder solely as a result of its obligations as successor Master Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Master Servicer shall be entitled to the
Servicing Fees and all fees relating to the Mortgage Loans or Companion Loans
which the Master Servicer would have been entitled to if the Master Servicer had
continued to act hereunder, including but not limited to any income or other
benefit from any Permitted Investment pursuant to Section 3.06, and subject to
Section 3.11, the Master Servicer as successor to the Special Servicer shall be
entitled to the Special Servicing Fees to which the Special Servicer would have
been entitled if the Special Servicer had continued to act hereunder. Should the
Trustee or the Master Servicer, as applicable, succeed to the capacity of the
Master Servicer or the Special Servicer, as the case may be, the Trustee or the
Master Servicer, as applicable, shall be afforded the same standard of care and
liability as the Master Servicer or the Special Servicer, as applicable,
hereunder notwithstanding anything in Section 8.01 to the contrary, but only
with respect to actions taken by it in its role as successor Master Servicer or
successor Special Servicer, as the case may be, and not with respect to its role
as Trustee or Master Servicer, as applicable, hereunder. Notwithstanding the
above, the Trustee may, if it shall be unwilling to act as successor to the
Master Servicer, or shall, if it is unable to so act, or if the Trustee is not
approved as a servicer by each Rating Agency, or if the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights so request in writing to the Trustee, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution which meets the criteria set forth in Section 6.04
and otherwise herein, as the successor to the Master Servicer or the Special
Servicer, as applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or Special
Servicer hereunder. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption in writing by
the successor to the Master Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter and
upon Rating Agency confirmation, and which appointment has been approved by the
Directing Certificateholder, such approval not to be unreasonably withheld.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, unless the Trustee or the Master Servicer, as applicable,
shall be prohibited by law from so acting, the Trustee or the Master Servicer,
as applicable, shall act in such capacity as herein above provided. In
connection with such appointment and assumption of a successor to the Master
Servicer or Special Servicer as described herein, the Trustee or the Master
Servicer, as applicable, may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation with respect to a successor
Master Servicer or successor Special Servicer, as the case may be, shall be in
excess of that permitted the terminated Master Servicer or Special Servicer, as
the case may be, hereunder. The Trustee, the Master Servicer or the Special
Servicer (whichever is not the terminated party) and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Any costs and expenses associated with the transfer of the
servicing function (other than with respect to a termination without cause)
under this Agreement shall be borne by the predecessor Master Servicer or
Special Servicer, as applicable.
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 the Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer or the
Special Servicer pursuant to Section 7.02, the Paying Agent shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders (and, if the Bank of America Plaza Whole Loan is
affected, the Bank of America Plaza Companion Noteholder) 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 within 20 days of the receipt of notice from the Paying
Agent of the occurrence of such Event of Default; provided, however, that an
Event of Default under clause (i) 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, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. Upon any such waiver of an
Event of Default by Certificateholders, the Trustee shall be entitled to recover
all costs and expenses incurred by it in connection with enforcement action
taken with respect to such Event of Default prior to such waiver from the Trust
Fund. 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 any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that the
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within five Business Days following such failure by the Master Servicer with
respect to Servicing Advances resulting in an Event of Default under Section
7.01(a)(iii) hereof to the extent a Responsible Officer of the Trustee has
actual knowledge of such failure with respect to such Servicing Advances and (y)
by noon, New York City time, on the related Distribution Date with respect to
P&I Advances pursuant to the Paying Agent's notice of failure pursuant to
Section 4.03(a) unless such failure has been cured. 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, (without regard to any impairment of any such rights of reimbursement caused
by such Master Servicer's default in its obligations hereunder); provided,
however, that if Advances made by the Trustee and the Master Servicer shall at
any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and the interest thereon
hereunder shall be applied entirely to the Advances outstanding to the Trustee,
until such Advances shall have been repaid in full, together with all interest
accrued thereon, prior to reimbursement of the Master Servicer for such
Advances. The Trustee shall be entitled to conclusively rely on any notice given
with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent. (a) The
Trustee and the Paying Agent, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee and the Paying Agent
contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent 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 or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent 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 or another Person, and
accepted by the Trustee or the Paying Agent in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(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).
(d) The Paying Agent shall promptly make available via its internet
website initially located at "xxx.xxxxxxxx.xxx" to the Companion Holders all
reports that the Paying Agent has made available to Certificateholders under
this Agreement to the extent such reports relate to the related Companion Loan.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent 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 and the Paying Agent 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) Neither the Trustee nor the Paying Agent shall 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
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall 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) Neither the Trustee nor the Paying Agent shall 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, neither
the Trustee nor the Paying Agent shall 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 or the Paying Agent 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 or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent 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 or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Master Servicer or the Special Servicer
(unless the Trustee is acting as Master Servicer or Special Servicer, as
the case may be, in which case the Trustee shall only be responsible for
its own actions as Master Servicer or Special Servicer) or of the
Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and
in the Certificates, other than the acknowledgments of the Trustee or the Paying
Agent in Sections 2.02 and 2.05 and the signature, if any, of the Certificate
Registrar and Authenticating Agent set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, the Master Servicer or the
Special Servicer, as the case may be, and the Trustee or the Paying Agent assume
no responsibility for their correctness. Neither the Trustee nor the Paying
Agent makes any representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature, if any, of the
Trustee or the Paying Agent set forth thereon) or of any Mortgage Loan or
related document. Neither the Trustee nor the Paying Agent shall 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 Certificate
Account or any other account by or on behalf of the Depositor, the Master
Servicer, the Special Servicer or in the case of the Trustee, the Paying Agent
(unless the Trustee is acting as Paying Agent). The Trustee and the Paying Agent
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 or the Paying Agent, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates. The
Trustee or the Paying Agent, each in its individual capacity, not as Trustee or
Paying Agent, 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 it would have
if it were not Trustee or the Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent. (a) As compensation for the
performance of their respective duties hereunder, the Trustee will be paid the
Trustee Fee equal to the Trustee's portion of one month's interest at the
Trustee Fee Rate, which shall cover recurring and otherwise reasonably
anticipated expenses of the Trustee. The Trustee Fee shall be paid monthly on a
Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan, the
Trustee Fee shall accrue from time to time at the Trustee's portion of the
Trustee Fee Rate and shall be computed on the basis of the Stated Principal
Balance of such Mortgage Loan and a 360-day year consisting of twelve 30-day
months. The Trustee Fee (which shall not be limited to any provision of law in
regard to the compensation of a trustee of an express trust) shall constitute
the Trustee's sole form of compensation for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. No Trustee Fee shall be
payable with respect to the Companion Loans.
(b) The Trustee, the Paying Agent (in each case, including in its
individual capacity) and any director, officer, employee or agent of the Trustee
and the Paying Agent, respectively, shall be entitled to be indemnified and held
harmless by the Trust Fund (to the extent of amounts on deposit in the
Certificate Account or Lower-Tier Distribution Account from time to time)
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
Master Servicer or successor Special Servicer, to the extent not otherwise paid
hereunder) arising out of, or incurred in connection with, any act or omission
of the Trustee or the Paying Agent, respectively, relating to the exercise and
performance of any of the powers and duties of the Trustee or the Paying Agent,
respectively, hereunder; provided, however, that none of the Trustee or the
Paying Agent, nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
or the Paying Agent, respectively, in the normal course of the Trustee or the
Paying Agent, respectively, 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
or the Paying Agent's, respectively, 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, warranty or covenant of the Trustee or the
Paying Agent, respectively, made herein. The provisions of this Section 8.05(b)
shall survive the termination of this Agreement and any resignation or removal
of the Trustee or the Paying Agent, respectively, and appointment of a successor
thereto. The foregoing indemnity shall also apply to the Paying Agent in its
capacities of Certificate Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and Paying Agent.
The Trustee and the Paying Agent hereunder shall at all times be, and will be
required to resign if it fails to be, (i) a corporation, national bank, national
banking association or a trust company, organized and doing business under the
laws of any state or the United States of America, 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 $100,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the 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) with respect to the Trustee only, an institution whose long-term
senior unsecured debt is rated "AA-" by Fitch and "Aa3" by Xxxxx'x (or such
entity as would not, as evidenced in writing by such Rating Agency, result in
the qualification, downgrading or withdrawal of any of the ratings then assigned
thereby to the Certificates or any class of Bank of America Plaza Securities;
provided that the Trustee shall not cease to be eligible to serve as such based
on a failure to satisfy such rating requirements so long as the Trustee
maintains a long-term unsecured debt rating of no less than "A+" from Fitch and
"A1" from Xxxxx'x and a short-term unsecured debt rating of at least "A-1" by
Fitch (or such rating as would not, as evidenced in writing by such Rating
Agency, result in a qualification, downgrading or withdrawal of any of the
ratings assigned to the Certificates or any class of Bank of America Plaza
Securities).
If such corporation, national bank 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,
national bank 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. In the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC and the Lower-Tier REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent. (a) The Trustee and the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer, the Special Servicer and the Trustee or the
Paying Agent, as applicable, and to all Certificateholders. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor Trustee
or paying agent acceptable to the Master Servicer and the Directing
Certificateholder by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or Paying Agent and to the successor Trustee
or paying agent. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Certificateholders and the Trustee or Paying
Agent, as applicable, by the Depositor. If no successor Trustee or paying agent
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee or Paying Agent
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 (and in the case of
the Paying Agent, Section 5.07) and shall fail to resign after written request
therefor by the Depositor or the Master Servicer, or if at any time the Trustee
or Paying Agent shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or the Paying Agent or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or Paying Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if the Trustee or Paying Agent
(if different than the Trustee) shall fail (other than by reason of the failure
of either the Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
or Paying Agent's, as applicable, reasonable control), to timely publish any
report to be delivered, published or otherwise made available by the Trustee or
Paying Agent pursuant to Section 4.02 and such failure shall continue unremedied
for a period of five days, or if the Trustee or Paying Agent fails to make
distributions required pursuant to Sections 3.05(c), 4.01 or 9.01, then the
Depositor may remove the Trustee or Paying Agent, as applicable, and appoint a
successor Trustee or paying agent acceptable to the Master Servicer or paying
agent acceptable to the Trustee or Paying Agent, as applicable, by written
instrument, in duplicate, which instrument shall be delivered to the Trustee or
Paying Agent so removed and to the successor Trustee or paying agent in the case
of the removal of the Trustee or Paying Agent. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor Trustee or paying agent 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 or Paying Agent 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 and the remaining Certificateholders by the
Master Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent. (a) Any successor
Trustee or Paying Agent 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 or Paying Agent an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent shall become effective and such successor
Trustee or Paying Agent 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 or
Paying Agent herein. The predecessor Trustee shall deliver to the successor
Trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian, at Custodian's option shall become the agent of the
successor Trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor Trustee all such rights, powers, duties and
obligations, and to enable the successor Trustee to perform its obligations
hereunder.
(b) No successor Trustee or successor Paying Agent shall, as
applicable, accept appointment as provided in this Section 8.08 unless at the
time of such acceptance such successor Trustee or successor Paying Agent, as
applicable, shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee or
successor Paying Agent as provided in this Section 8.08, the Master Servicer
shall mail notice of the succession of such trustee or paying agent, as
applicable, to the Depositor and the Certificateholders. If the Master Servicer
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or successor Paying Agent, as applicable, such successor
Trustee or successor Paying Agent shall cause such notice to be mailed at the
expense of the Master Servicer.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent. Any
Person into which the Trustee or the Paying Agent may be merged or converted or
with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee or the Paying Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee or the Paying Agent shall be the successor of the
Trustee or the Paying Agent, as applicable, hereunder; provided, that, in the
case of the Trustee, 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. The Trustee or the Paying Agent, as applicable, will
provide notice of such event to the Master Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
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 shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. All co-trustee fees
shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall 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 one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Trustee. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus of at least $15,000,000 and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage File
and shall not be the Depositor or any Affiliate of the Depositor. Each Custodian
shall be subject to the same obligations and standard of care as would be
imposed on 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. Any
Custodian appointed hereunder must maintain a fidelity bond and errors and
omissions policy in an amount customary for Custodians which serve in such
capacity in commercial mortgage loan securitization transactions.
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 Paying Agent and the Trustee three
copies 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 and the Paying Agent, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Paying Agent and the Trustee a
copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Paying Agent (or with respect to item (ii)(j)
below, the Trustee) shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance notice, make
available during normal business hours for review by any Holder of a
Certificate, the Depositor, the Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Paying Agent (or the Trustee, if
applicable) believes such disclosure is appropriate, originals or copies of the
following items: (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 Paying Agent and
(ii) in all cases (in the case of clause (ii) also to the Bank of America Plaza
Companion Noteholder with respect to the Bank of America Plaza Whole Loan and
any Rating Agency rating the Bank of America Plaza Companion Loan Securities)
(a) this Agreement and any amendments hereto entered into pursuant to Section
12.01, (b) all statements required to be delivered to Certificateholders of the
relevant Class pursuant to Section 4.02 since the Closing Date, (c) all
Officer's Certificates delivered to the Paying Agent and the Trustee since the
Closing Date pursuant to Section 11.09, (d) all accountants' reports delivered
to the Trustee and the Paying Agent since the Closing Date pursuant to Section
11.11, (e) any inspection report prepared by the Master Servicer, Sub-Servicer
or Special Servicer, as applicable, and delivered to the Trustee and the Paying
Agent and Master Servicer in respect of each Mortgaged Property pursuant to
Section 3.12(a), (f) as to each Mortgage Loan and Companion Loan pursuant to
which the related Mortgagor is required to deliver such items or the Special
Servicer has otherwise acquired such items, the most recent annual operating
statement and rent roll of the related Mortgaged Property and financial
statements of the related Mortgagor and any other reports of the Mortgagor
collected by the Master Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Paying Agent pursuant to Section 3.12(c),
together with the accompanying written reports to be prepared by the Special
Servicer and delivered to the Paying Agent pursuant to Section 3.12(b), (g) any
and all notices, reports and Environmental Assessments delivered to the Paying
Agent with respect to any Mortgaged Property securing a Defaulted Mortgage Loan
and Companion Loan as to which the environmental testing contemplated by Section
3.09(c) revealed that either of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof was not satisfied (but only for so long as such
Mortgaged Property or the related Mortgage Loan are part of the Trust Fund), (h)
any and all modifications, waivers and amendments of the terms of a Mortgage
Loan and Companion Loan entered into by the Master Servicer or the Special
Servicer and delivered to the Paying Agent pursuant to Section 3.20 (but only
for so long as the affected Mortgage Loan and Companion Loan is part of the
Trust Fund), (i) any and all Officer's Certificates delivered to the Paying
Agent 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, (j) any and all of the
Mortgage Loan and Companion Loan documents contained in the Mortgage File, (k)
any and all Appraisals obtained pursuant to the definition of "Appraisal
Reduction" herein, (l) information regarding the occurrence of Servicing
Transfer Events as to the Mortgage Loans and (m) 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 Paying Agent upon
request; provided, however, that the Paying Agent (or the Trustee, if
applicable) 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 Directing Certificateholder or the Rating Agencies,
which shall be free of charge (except for extraordinary or duplicate requests).
In addition, without limiting the generality of the foregoing, any Class J,
Class K, Class L, Class M, Class N, Class P and Class NR Certificateholder may
upon request from the Paying Agent obtain a copy of any factual report (other
than the Asset Status Report) delivered to the Rating Agencies under this
Agreement. Nothing contained in this Section 8.12(a) shall be construed to limit
the reports and information described on Exhibit M attached hereto and required
to be delivered to the Directing Certificateholder without charge.
(b) The Paying Agent shall make available to certain financial
market publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc. on a monthly basis all CMSA reports and any other reports
required to be delivered by the Paying Agent pursuant to Article IV hereof. If
any such information is provided on or before February 19, 2007, the Paying
Agent shall make the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc.
(c) 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
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, 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.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent 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 in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Master Servicer,
the Special Servicer and the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(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 charter and by-laws 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
national banking associations 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 either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(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 either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; 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.
Section 8.14 Representations and Warranties of the Paying Agent. (a)
The Paying Agent hereby represents and warrants to the Depositor, the Master
Servicer, the Special Servicer and the Trustee and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association duly
organized under the laws of the United States, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
by-laws 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 Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent;
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent; 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 Paying Agent, or compliance by the Paying Agent 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 Paying Agent of its obligations under this Agreement,
and which, if not obtained would not have a materially adverse effect on
the ability of the Paying Agent to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer and the Trustee (other than
the obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the final payment (or related Advance) or
other liquidation of the last Mortgage Loan or REO Property subject thereto or
(ii) the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, the Master Servicer or the Holders of
the Class LR Certificates, in that order of priority, of all the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund at
a price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of the Trust Fund's portion of each REO Property, if any,
included in the Trust Fund (such Appraisals in clause (a)(2) to be conducted by
an Independent MAI-designated appraiser selected and mutually agreed upon by the
Master Servicer and the Trustee, and approved by more than 50% of the Voting
Rights of the Classes of Certificates then outstanding (other than the
Controlling Class unless the Controlling Class is the only Class of Certificates
then outstanding)) (which approval shall be deemed given unless more than 50% of
such Certificateholders object within 20 days of receipt of notice thereof) and
(3) the reasonable out-of-pocket expenses of the Master Servicer with respect to
such termination, unless the Master Servicer is the purchaser of such Mortgage
Loans, minus (b) solely in the case where the Master Servicer is effecting such
purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to the Master Servicer in respect of such Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase) or (iii)
voluntary exchange by the Sole Certificateholder of all the outstanding
Certificates (other than the Class R and Class LR Certificates) for the
remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the
terms of the immediately succeeding paragraph; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. James's, living on the
date hereof.
Following the date on which the Class A, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificates retire (and provided that
there is only one Holder of the then outstanding Certificates (other than the
Residual Certificates)), the Sole Certificateholder shall have the right to
exchange all of its Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (iii) of the first
paragraph of this Section 9.01 by giving written notice to all the parties
hereto no later than 60 days prior to the anticipated date of exchange. In the
event that the Sole Certificateholder elects to exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent hereunder
through the date of the liquidation of the Trust Fund that may be withdrawn from
the Certificate Account, or an escrow account acceptable to the respective
parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the
Distribution Account pursuant to Section 3.05(a), but only to the extent that
such amounts are not already on deposit in the Certificate Account. In addition,
the Master Servicer shall transfer all amounts required to be transferred to the
Lower-Tier Distribution Account on the P&I Advance Date related to such
Distribution Date in which the final distribution on the Certificates is to
occur from the Certificate Account pursuant to the first paragraph of Section
3.04(b) (provided, however, that if the Loan Pair is secured by REO Property,
the Trust Fund's portion of the REO Property which is being purchased pursuant
to the foregoing, the portion of the above-described purchase price allocable to
such Trust Fund's portion of REO Property shall initially be deposited into the
related REO Account). Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Residual
Certificates) on the final Distribution Date, the Trustee shall, upon receipt of
a Request for Release from the Master Servicer, release or cause to be released
to the Sole Certificateholder or any designee thereof, the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Section 9.02. Solely for federal income tax purposes, the Sole
Certificateholder shall be deemed to have purchased the assets of the Lower-Tier
REMIC for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Class X and the Residual Certificates), plus
accrued, unpaid interest with respect thereto, and the Trustee shall credit such
amounts against amounts distributable in respect of such Certificates and
Related Uncertificated Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent and the Companion Paying Agent shall terminate with respect to any
Companion Loan to the extent (i) its related AB Mortgage Loan or the Bank of
America Plaza Mortgage Loan has been paid in full or is no longer part of the
Trust Fund and (ii) no amounts payable by the related Companion Holder to or for
the benefit of the Trust or any party hereto in accordance with the related
Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee, the Paying Agent and the
other parties hereto no later than 60 days prior to the anticipated date of
purchase; provided, however, that the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates may
so elect to purchase all of the Mortgage Loans and the Trust Fund's portion of
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and the Trust Fund's portion of any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Master Servicer or the Special Servicer purchases, or the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchase, all of
the Mortgage Loans and the Trust Fund's portion of each REO Property remaining
in the Trust Fund in accordance with the preceding sentence, the Master
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, as applicable, shall deposit in the
Lower-Tier Distribution Account not later than the P&I Advance Date relating to
the Distribution Date on which the final distribution on the Certificates is to
occur, an amount in immediately available funds equal to the above-described
purchase price (exclusive of any portion thereof payable to any Person other
than the Certificateholders pursuant to Section 3.05(a), which portion shall be
deposited in the Certificate Account). In addition, the Master Servicer shall
transfer to the Lower-Tier Distribution Account all amounts required to be
transferred thereto on such P&I Advance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution. Upon confirmation that such final deposits and payments
have been made, the Trustee shall release or cause to be released to the Master
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, as applicable, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Master Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, as shall be necessary to effectuate transfer of the
Mortgage Loans and REO Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Master Servicer, and then the Holders of the
Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, 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.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to the Certificateholders, the Bank
of America Plaza Companion Noteholder and each Rating Agency and, if not
previously notified pursuant to this Section 9.01, to the other parties hereto
mailed (a) in the event such notice is given in connection with the purchase of
all of the Mortgage Loans and each REO Property remaining in the Trust Fund, not
earlier than the 15th day and not later than the 25th day of the month next
preceding the month of the final distribution on the Certificates, or (b)
otherwise during the month of such final distribution on or before the P&I
Advance Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account, in each case pursuant to Section 3.04(b),
and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent 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 (exclusive of any portion
of such amounts payable or reimbursable to any Person pursuant to clause (ii) of
Section 3.05(e)) shall be allocated for these purposes, in the amounts and in
accordance with the priority set forth in Sections 4.01(b), 4.01(d) and 4.01(e)
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). Any funds not distributed on such Distribution
Date shall be set aside and held uninvested in trust for the benefit of the
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(g).
Section 9.02 Additional Termination Requirements. In the event the
Master Servicer or the Special Servicer purchases, or the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchase, all of
the Mortgage Loans and the Trust Fund's portion of each REO Property remaining
in the Trust Fund as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, which meet
the definition of a "qualified liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as
applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Paying Agent shall distribute or
credit, or cause to be distributed or credited, to the Holders of 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), and the Trust Fund and each of
the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that
time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Paying Agent shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicer nor the Trustee shall permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Lower-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the (i) Class R and (ii) Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the (i) Upper-Tier REMIC and
(ii) the Lower-Tier REMIC, respectively. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the (i) Class R and (ii)
Class LR Certificates hereby agrees to irrevocably appoint the Paying Agent as
their agent to perform all of the duties of the "tax matters person" for the (i)
Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Trustee without any right of reimbursement therefor.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions and the Trustee shall
assist the Paying Agent to the extent reasonably requested by the Paying Agent
to do so. Neither the Master Servicer nor the Special Servicer 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)
endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
or (ii) result in the imposition of a tax upon the Lower-Tier REMIC or the
Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but
not including the tax on "net income from foreclosure property") (either such
event, an "Adverse REMIC Event") unless the Paying Agent 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 the Paying Agent 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 the Paying Agent or the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC created hereunder, endanger such status or, unless the Paying
Agent determines in its sole discretion to indemnify the Trust Fund against such
tax, result in the imposition of such a tax (not including a tax on "net income
from foreclosure property"). The Trustee shall not take or fail to take any
action (whether or not authorized hereunder) as to which the Paying Agent 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. The Paying
Agent may consult with counsel to make such written advice, and the cost of same
shall be borne by the party seeking to take the action not expressly permitted
by this Agreement, but in no event at the expense of the Paying Agent or the
Trustee. At all times as may be required by the Code, the Paying Agent will to
the extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of each of the Lower-Tier
REMIC and the Upper-Tier REMIC 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.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Paying Agent in writing), and shall remit to the Master Servicer such
reserved amounts as the Master Servicer shall request in order to pay such
taxes. Except as provided in the preceding sentence, the Master Servicer shall
withdraw from the Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
the Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization shall not
prevent the Paying Agent from contesting, at the expense of the Trust Fund
(other than as a consequence of a breach of its obligations under this
Agreement), any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
Paying Agent is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any "prohibited transaction"
under Section 860F(a) of the Code or the amount of any taxable contribution to
the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup Day that is
subject to tax under Section 860G(d) of the Code and use such income or amount,
to the extent necessary, to pay such prohibited transactions tax. To the extent
that any such tax (other than any such tax paid in respect of "net income from
foreclosure property") is paid to the Internal Revenue Service or applicable
state or local tax authorities, the Paying Agent shall retain an equal amount
from future amounts otherwise distributable to the Holders of Residual
Certificates (as applicable) and shall distribute such retained amounts, (x) in
the case of the Uncertificated Lower-Tier REMIC Interests, to the Upper-Tier
REMIC to the extent they are fully reimbursed for any Collateral Support Deficit
arising therefrom and then to the Holders of the Class LR Certificates in the
manner specified in Section 4.01(b) and (y) in the case of the Upper-Tier REMIC,
to the Holders of Class 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 P, Class NR and Class X Certificates, as applicable, in the manner
specified in Section 4.01(a), to the extent they are fully reimbursed for any
Collateral Support Deficit arising therefrom and then to the Holders of the
Class R Certificates. None of the Trustee, the Paying Agent, the Master Servicer
or the Special Servicer shall be responsible for any taxes imposed on the
Lower-Tier REMIC or the Upper-Tier REMIC except to the extent such taxes arise
as a consequence of a breach of their respective obligations under this
Agreement which breach constitutes willful misfeasance, bad faith, or negligence
by such party.
(h) The Paying Agent shall, for federal income tax purposes,
maintain or cause to be maintained books and records with respect to each of the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the Paying Agent 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 the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class X and Residual Certificates) representing a "regular interest" in the
Upper-Tier REMIC and by which the Lower-Tier Principal Amount of each Class of
Uncertificated Lower-Tier Interests representing a "regular interest" in the
Lower-Tier REMIC would be reduced to zero is the Rated Final Distribution Date.
(l) None of the Trustee, the Paying Agent, the Master Servicer or
the Special Servicer, as applicable, shall sell, 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 foreclosure or deed in
lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of the Trust Fund pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement) or
acquire any assets for the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC or sell or dispose of any investments in the Certificate Account or the
REO Account for gain unless it has received an Opinion of Counsel that such
sale, disposition or substitution will not (a) affect adversely the status of
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Trustee, the Paying Agent, the Master Servicer or the Special Servicer, as
applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC to be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(b) The Paying Agent may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Paying Agent shall not be relieved of any of its duties or obligations under
this Article X by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent. (a) The Depositor shall provide or cause to be
provided to the Paying Agent within ten (10) days after the Depositor receives a
request from the Paying Agent, all information or data that the Paying Agent
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumptions and projected cash flow of the Certificates.
(b) The Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, 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 Paying Agent in order to enable it to perform its
duties hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Paying
Agent may appoint at the Paying Agent's expense, one or more REMIC
Administrators, which shall be authorized to act on behalf of the Paying Agent
in performing the functions set forth in Section 10.01 herein. The Paying Agent
shall cause any such REMIC Administrator to execute and deliver to the Paying
Agent an instrument in which such REMIC Administrator shall agree to act in such
capacity, with the obligations and responsibilities herein. The appointment of a
REMIC Administrator shall not relieve the Paying Agent from any of its
obligations hereunder, and the Paying Agent shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Paying Agent and must be organized and doing business
under the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Paying Agent hereby agrees to act in such capacity in accordance with the
terms hereof. If LaSalle Bank National Association is removed as Paying Agent,
then LaSalle Bank National Association shall be terminated as REMIC
Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Paying Agent may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.04, the Paying Agent may
appoint a successor REMIC Administrator, in which case the Paying Agent shall
given written notice of such appointment to the Master Servicer and the
Depositor and shall mail notice of such appointment to all Certificateholders;
provided, however, that no successor REMIC Administrator shall be appointed
unless eligible under the provisions of this Section 10.04. Any successor REMIC
Administrator upon acceptance of its appointment hereunder shall become vested
with all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as REMIC Administrator. No
REMIC Administrator shall have responsibility or liability for any action taken
by it as such at the direction of the Paying Agent.
[End of Article X]
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the 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 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;
provided that in all instances the reports and certificates contemplated by
Sections 11.09, 11.10 and 11.11 shall be provided to the Rating Agencies as
required thereunder; provided, however, that the Trustee and Paying Agent shall
be deemed to have satisfied any delivery requirements to the Rating Agencies
thereunder by making such reports and certificates available on its internet
website. 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, 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 Regulation AB. In
connection with the X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17,
each of the Master Servicer, the Special Servicer, the Trustee and the Paying
Agent shall cooperate fully with the Depositor and the Paying Agent, as
applicable, to deliver or make available to the Depositor or the Paying Agent
(including any of its assignees or designees), any and all statements, reports,
certifications, records and any other information (in its possession or
reasonably attainable) 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, the Trustee and the Paying Agent, as applicable, and any Sub-Servicer,
or the servicing of the Mortgage Loans, reasonably believed by the Depositor to
be necessary in order to effect such compliance. For purposes of this Article
XI, to the extent any party has an obligation to exercise commercially
reasonable efforts to cause a third party to perform, such party hereunder shall
not be required to bring any legal action against such third party in connection
with such obligation.
Section 11.02 Succession; Subcontractors. (a) As a condition to the
succession to the Master Servicer and Special Servicer or to any Sub-Servicer as
servicer or sub-servicer under this Agreement by any Person (i) into which the
Master Servicer and Special Servicer or such Sub-Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer and Special Servicer or to any Sub-Servicer, the Master Servicer and
Special Servicer shall provide to the Depositor and the Paying Agent, at least
15 calendar days prior to the effective date of such succession or appointment
(or such shorter period as is agreed to by the Depositor), (x) written notice to
the Depositor of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Depositor, all information 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 pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act); provided, however that if disclosing such information prior to
such effective date would violate any applicable law or confidentiality
agreement, the Master Servicer or Special Servicer, as applicable, shall submit
such disclosure to the Depositor no later than the first Business Day after the
effective date of such succession or appointment.
(b) Each of the Master Servicer, the Special Servicer, the
Sub-Servicer, the Trustee and the Paying Agent (each of the Master Servicer, the
Special Servicer, the Trustee and the Paying Agent and each Sub-Servicer, for
purposes of this paragraph, a "Servicer") is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. Such Servicer
shall promptly upon request provide to the Depositor a written description (in
form and substance satisfactory to the Depositor) of the role and function of
each Subcontractor utilized by such Servicer, specifying (i) the identity of
each Subcontractor that is a Servicing Function Participant and (ii) the
elements of the Servicing Criteria that will be addressed in assessments of
compliance provided by each such Subcontractor. As a condition to the
utilization by such Servicer of any Subcontractor determined to be a Servicing
Function Participant, such Servicer shall (i) with respect to any such
Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use
commercially reasonable efforts to cause, and (ii) with respect to any other
subcontractor with which it has entered into a servicing relationship, cause
such Subcontractor used by such Servicer for the benefit of the Depositor and
the Trustee to comply with the provisions of Section 11.10 and Section 11.11 of
this Agreement to the same extent as if such Subcontractor were such Servicer.
With respect to any Servicing Function Participant engaged by such Servicer that
is an Initial Sub-Servicer, such Servicer shall be responsible for using
commercially reasonable efforts to obtain, and with respect to each other
Servicing Function Participant engaged by such Servicer, obtain from each such
Servicing Function Participant and delivering to the applicable Persons any
assessment of compliance report and related accountant's attestation required to
be delivered by such Subcontractor under Section 11.10 and Section 11.11, in
each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor, other than an Initial Sub-Servicer in connection with the
performance of any of its duties under this Agreement, such Servicer shall be
responsible for determining whether such Subcontractor is a "servicer" within
the meaning of Item 1101 of Regulation AB and whether any such Subcontractor
meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a
Servicer determines, pursuant to the preceding sentence, that such Subcontractor
is a "servicer" within the meaning of Item 1101 of Regulation AB and meets the
criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such
Subcontractor shall be deemed to be a Sub-Servicer for purposes of this
Agreement, the engagement of such Sub-Servicer shall not be effective unless and
until notice is given to the Depositor and the Trustee of any such Sub-Servicer
and Subservicing Agreement. Other than with respect to the Initial Sub-Servicer,
no Subservicing Agreement shall be effective until 15 days after such written
notice is received by the Depositor and the Paying Agent (or such shorter period
as is agreed to by the Depositor). Such notice shall contain all information
reasonably necessary to enable the Paying Agent to accurately and timely report
the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such
reports under the Exchange Act are required to be filed under the Exchange Act).
(d) In connection with the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee, the
Trustee shall notify the Depositor and each Rating Agency, at least 30 calendar
days prior to the effective date of such succession or appointment (or if such
prior notice is violative of applicable law or any applicable confidentiality
agreement, no later than one (1) Business Day after such effective date of
succession) and shall furnish to the Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
necessary for the Paying Agent to accurately and timely report, pursuant to
Section 11.07, the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act).
(e) Notwithstanding anything to the contrary contained in this
Article XI, in connection with any Initial Sub-Servicer and/or any Mortgage Loan
that is the subject of an Initial Sub-Servicing Agreement, with respect to all
matters related to Regulation AB, the Master Servicer shall not have any
obligation other than to use commercially reasonable efforts to cause such
Initial Sub-Servicer to comply with its obligations under such Initial
Sub-Servicing Agreement.
Section 11.03 Filing Obligations. (a) The Master Servicer, the
Special Servicer, the Paying Agent and the Trustee shall reasonably cooperate
with the Depositor in connection with the satisfaction of the Trust's reporting
requirements under the Exchange Act. Pursuant to Sections 11.04, 11.05, 11.06
and 11.07 below, the Paying Agent shall prepare for execution by the Depositor
any Forms 8-K, 10-D and 10-K required by the Exchange Act, in order to permit
the timely filing thereof, and the Paying Agent shall file (via the Commission's
Electronic Data Gathering and Retrieval System) such Forms executed by the
Depositor.
Each party hereto shall be entitled to rely on the information in
the Prospectus Supplement with respect to the identity of any Sponsor, credit
enhancer, derivative provider or "significant obligor" as of the Closing Date
other than with respect to itself or any information required to be provided by
it or indemnified for by it pursuant to any separate agreement.
(b) In the event that the Paying Agent is unable to timely file with
the Commission all or any required portion of any Form 8-K, 10-D or 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, the Paying Agent will promptly notify the
Depositor. In the case of Forms 10-D and 10-K, the Depositor, the Master
Servicer, the Paying Agent and Trustee will thereupon cooperate to prepare and
file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as applicable, pursuant to
Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Paying Agent will,
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 succeeding Form 10-D to be filed for the Trust. In the event that any
previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the
Paying Agent will notify the Depositor, and such other parties as needed and the
parties hereto will cooperate with the Paying Agent to prepare any necessary
Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or any
amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by an officer of
the Depositor. The parties to this Agreement acknowledge that the performance by
the Paying Agent of its duties under this Section 11.03 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 parties observing all applicable
deadlines in the performance of their duties under Sections 11.03, 11.04, 11.05,
11.06, 11.07, 11.08, 11.09, 11.10 and 11.11. The Paying Agent shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, arrange for execution and/or timely file any
such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K,
where such failure results from the Paying Agent's inability or failure to
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 15, Form 12b-25 or any
amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Paying Agent shall prepare and file on behalf of the Trust any Form 10-D
required by the Exchange Act, in form and substance as required by the Exchange
Act. The Paying Agent shall file each Form 10-D 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 following paragraph
be reported by the parties set forth on Exhibit Y to the Depositor and the
Paying Agent and approved by the Depositor, and the Paying Agent will have no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Exhibit Y hereto, within 5 calendar days after
the related Distribution Date, (i) certain parties to this Agreement identified
on Exhibit Y hereto shall be required to provide to the Paying Agent and the
Depositor, to the extent a Regulation AB Servicing Officer or Responsible
Officer, as the case may be, has actual knowledge, in XXXXX compatible format,
or in such other format as otherwise agreed upon by the Paying Agent, the
Depositor and such providing parties, the form and substance of any Additional
Form 10-D Disclosure, if applicable, (ii) the parties listed on Exhibit Y hereto
shall include with such Additional Form 10-D Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit BB and (iii) the
Depositor shall 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.
Neither the Trustee nor the Paying Agent has any duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit Y 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 expenses incurred by the Trustee or Paying Agent
in connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than the fifth calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D if the
answer to the questions should be "no." The Paying Agent shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
(b) After preparing the Form 10-D, the Paying Agent shall forward
electronically a copy of the Form 10-D to the Depositor for review no later than
10 calendar days after the related Distribution Date or, if the 10th calendar
day after the related Distribution Date is not a Business Day, the immediately
preceding Business Day. Within two Business Days after receipt of such copy, but
no later than the 2 Business Days prior to the 15th calendar day after the
Distribution Date, the Depositor shall notify the Paying Agent in writing (which
may be furnished electronically) of any changes to or approval of such Form 10-D
and, a duly authorized officer 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 Paying Agent.
Alternatively, if the Paying Agent agrees in its sole discretion, the Depositor
may deliver to the Paying Agent manually signed copies of a power of attorney
meeting the requirements of Item 601(b)(24) of Regulation S-K under the
Securities Act, and certified copies of a resolution of the Depositor's board of
directors authorizing such power of attorney, each to be filed with each Form
10-D, in which case the Paying Agent shall sign such Forms 10-D as attorney in
fact for the Depositor. In the event that the Paying Agent signs the Forms 10-D
as attorney in fact for the Depositor pursuant to such powers of attorney, the
Paying Agent shall deliver a draft of each such Form 10-D to the Depositor no
later than 2 Business Days prior to the filing deadline applicable to such
report. If a Form 10-D cannot be filed on time or if a previously filed Form
10-D needs to be amended, the Paying Agent will follow the procedures set forth
in Section 11.03(b). Promptly after filing with the Commission, the Paying Agent
will make available on its internet website a final executed copy of each Form
10-D filed by the Paying Agent. The signing party at the Depositor can be
contacted at Xxxxxx Xxxxx, Managing Director and Associate General Counsel,
JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice President,
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000. The parties to
this Agreement acknowledge that the performance by the Paying Agent of its
duties under this Section 11.04(b) 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 11.04(b). Neither the
Trustee nor the Paying Agent shall have any liability for any loss, expense,
damage, or claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file such Form 10-D, where such
failure results from the Paying Agent's inability or failure to receive, on a
timely basis, any information from any party to this Agreement needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust (it being understood that the fiscal year for the
Trust ends on December 31 of each year) or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2007, the
Paying Agent 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
Paying Agent within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for the Master Servicer, the
Special Servicer and each Additional Servicer engaged by the Master
Servicer or the Special Servicer, as described under Section 11.09;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent, each Additional Servicer engaged by the Master
Servicer and each Servicing Function Participant utilized by the Master
Servicer, the Special Servicer, the Paying Agent or Trustee, as described
under Section 11.10; and
(B) if any such report on assessment of compliance with
servicing criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not
included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, the Master Servicer, the Special Servicer, the Paying
Agent each Additional Servicer engaged by the Master Servicer, the Special
Servicer and each Servicing Function Participant utilized by the Master
Servicer, the Special Servicer, the Paying Agent or the Trustee, as
described under Section 11.11; and
(B) if any registered public accounting firm attestation
report described under Section 11.11 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 why
such report is not included; and
(iv) a certification in the form attached hereto as Exhibit V, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
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 following paragraph be reported by the parties set forth on
Exhibit Z to the Depositor and the Paying Agent and approved by the Depositor
and the Paying Agent will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, absent such reporting,
direction and approval.
As set forth on Exhibit Z hereto, no later than March 15 of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, (i) the parties listed on Exhibit Z shall be required to
provide to the Paying Agent and the Depositor, to the extent a Regulation AB
Servicing Officer or Responsible Officer, as the case may be, has actual
knowledge, in XXXXX compatible format or in such other format as otherwise
agreed upon by the Paying Agent, the Depositor and such providing parties, the
form and substance of any Additional Form 10-K Disclosure, if applicable, (ii)
the parties listed on Exhibit Z hereto shall include with such Additional Form
10-K Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit BB and (iii) 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. Neither the Trustee nor the Paying Agent has
any duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit Z 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 expenses
incurred by the Trustee and the Paying Agent in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than March 15th with respect to the filing of a
report on Form 10-K, if the answer to the questions should be "no." The Paying
Agent shall be entitled to rely on such representations in preparing, executing
and/or filing any such report.
(b) After preparing the Form 10-K, the Paying Agent shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
6 Business Days prior to the 10-K Filing Deadline. Within three Business Days
after receipt of such copy, but no later than March 25th, the Depositor shall
notify the Paying Agent in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-K and the senior officer in charge of
securitization for 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 Paying Agent at such time. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Paying Agent shall follow the procedures set forth in Section
11.03(b). Promptly after filing with the Commission, the Paying Agent will make
available on its internet website a final executed copy of each Form 10-K filed
by the Paying Agent. The signing party at the Depositor can be contacted at
Xxxxxx Xxxxx, Managing Director and Associate General Counsel, JPMorgan Chase &
Co., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number:
(000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice President, X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, telecopy number: (000) 000-0000. The parties to this Agreement
acknowledge that the performance by the Paying Agent of its duties under this
Section 11.05 related to the timely preparation and filing of Form 10-K is
contingent upon the parties to this Agreement (and any Additional Servicer or
Servicing Function Participant engaged or utilized, as applicable, by any such
parties) observing all applicable deadlines in the performance of their duties
under this Section 11.05. Neither the Trustee nor the Paying Agent shall have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, arrange for execution and/or timely
file such Form 10-K, where such failure results from the Paying Agent's
inability or failure or receive, on a timely basis, any information from the
parties to this Agreement (or any Sub-Servicer or Servicing Function Participant
engaged by any such parties) needed to prepare, arrange for execution or file
such Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit V
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Master
Servicer, the Special Servicer, the Trustee and the Paying Agent shall provide,
and (i) with respect to each Initial Sub-Servicer engaged by the Master
Servicer, the Special Servicer, as applicable, that is a Servicing Function
Participant use commercially reasonable efforts to cause and (ii) with respect
to each other Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans, cause to, provide, to
the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person")
a certification in the form attached hereto as Exhibit W-1, W-2 and W-3 (each, a
"Performance Certification") as applicable, on which the Certifying Person, the
entity for which the Certifying Person acts as an officer (if the Certifying
Person is an individual), and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. In addition, in the event that any Companion Loan is deposited
into a commercial mortgage securitization (an "Other Securitization"), each
Reporting Servicer shall provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification with respect to such Other Securitization a certification in form
and substance similar to applicable Performance Certification (which shall
address the matters contained in the applicable Performance Certification, but
solely with respect to the related Companion Loan) on which such Person, the
entity for which the Person acts as an officer (if the Person is an individual),
and such entity's officers, directors and Affiliates can reasonably rely. The
senior officer in charge of securitization for the Depositor shall serve as the
Certifying Person on behalf of the Trust. In addition, each Reporting Servicer
shall execute a reasonable reliance certificate to enable the Certification
Parties to rely upon each (i) annual compliance statement provided pursuant to
Section 11.09, (ii) annual report on assessment of compliance with servicing
criteria provided pursuant to Section 11.10 and (iii) accountant's report
provided pursuant to Section 11.11, and shall include a certification that each
such annual compliance statement or report discloses any deficiencies or
defaults described to the registered public accountants of such Reporting
Servicer to enable such accountants to render the certificates provided for in
Section 11.11. In the event 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 11.06 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.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor and to the extent it
receives the Form 8-K Disclosure Information described below, the Paying Agent
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 following
paragraph be reported by the parties set forth on Exhibit AA to the Depositor
and the Paying Agent and approved by the Depositor, and the Paying Agent will
have no duty or liability for any failure hereunder to determine or prepare any
Form 8-K Disclosure Information or any Form 8-K, absent such reporting,
direction and approval.
As set forth on Exhibit AA hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon on the
2nd Business Day after the occurrence of a Reportable Event (i) the parties set
forth on Exhibit AA hereto shall be required to provide to the Depositor and the
Paying Agent, to the extent a Regulation AB Servicing Officer or Responsible
Officer, as the case may be, has actual knowledge, in XXXXX Compatible format or
in such other format agreed upon by the Depositor, the Paying Agent and such
providing parties any Form 8-K Disclosure Information, if applicable, (ii) the
parties listed on Exhibit AA hereto shall include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached hereto
as Exhibit BB and (iii) 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. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit AA of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable expenses incurred by the Trustee and the Paying Agent 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 Paying Agent shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
noon on the 3rd Business Day after the Reportable Event, but in no event earlier
than 24 hours after having received the Form 8-K Disclosure Information pursuant
to the immediately preceding paragraph. Promptly, but no later than the close of
business on the third Business Day after the Reportable Event, the Depositor
shall notify the Paying Agent in writing (which may be furnished electronically)
of any changes to or approval of such Form 8-K. No later than noon on the 4th
Business Day after the Reportable Event, a duly authorized officer 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 Paying Agent. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Paying Agent will follow the
procedures set forth in Section 11.03(b). Promptly after filing with the
Commission, the Paying Agent will, make available on its internet website a
final executed copy of each Form 8-K filed by the Paying Agent. The signing
party at the Depositor can be contacted at Xxxxxx Xxxxx, Managing Director and
Associate General Counsel, JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000, with a copy to Xxxxxx
Xxxxx, Vice President, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
834-6593. The parties to this Agreement acknowledge that the performance by the
Paying Agent of its duties under this Section 11.07 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
11.07. Neither the Trustee nor the Paying Agent shall have any liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare, arrange for execution and/or timely file such Form 8-K, where
such failure results from the Paying Agent's inability or failure to receive, on
a timely basis, any information from the parties to this Agreement needed to
prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
The Master Servicer, the Special Servicer, the Paying Agent and the
Trustee shall promptly notify (and the Master Servicer and the Special Servicer
shall (i) with respect to each Initial Sub-Servicer that is an Additional
Servicer engaged by such Master Servicer, Special Servicer, Trustee or Paying
Agent use commercially reasonable efforts to cause and (ii) with respect to each
other Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans (other than a party to this
Agreement) cause to promptly notify) the Depositor and the Paying Agent, but in
no event later than noon on the 2nd Business Day after its occurrence, of any
Reportable Event applicable to such party to the extent a Regulation AB
Servicing Officer or Responsible Officer, as the case may be, has actual
knowledge, in XXXXX Compatible format.
Section 11.08 Form 15 Filing. On or prior to January 30 of the first
year in which the Paying Agent is able to do so under applicable law, the Paying
Agent 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. If at the end of any fiscal year for the Trust during which occurred the
filing of a Form 15 Suspension Notification, if the number of Certificateholders
of record exceeds the number set forth in Section 15(d) of the Exchange Act or
the regulations promulgated pursuant thereto which would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Paying Agent shall recommence preparing and filing reports on Forms 10-K, 10-D
and 8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07;
provided, that if the Paying Agent re-commences the preparing and filing of
Exchange Act reports, it may, as soon as permitted by the Exchange Act, file
another Form 15 Suspension Notification.
Section 11.09 Annual Compliance Statements. The Master Servicer, the
Special Servicer, the Trustee and the Paying Agent (each, a "Certifying
Servicer") shall deliver to (and each such party shall (i) with respect to each
Additional Servicer engaged by such Master Servicer, Special Servicer, Trustee
or Paying Agent that is an Initial Sub-Servicer, use commercially reasonable
efforts to cause and (ii) with respect to each other Additional Servicer with
which it has entered into a servicing relationship with respect to the Mortgage
Loans, cause the delivery to) the Depositor and the Paying Agent on or before
March 15 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 calendar year or portion thereof and
of such Certifying Servicer's performance under this Agreement, or the
applicable sub-servicing agreement or primary servicing agreement in the case of
an Additional Servicer, has been made under such officer's supervision and (B)
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. The Master Servicer, the Special Servicer, the
Trustee and the Paying Agent shall, and each such party shall (i) with respect
to each Additional Servicer engaged by such Master Servicer, Special Servicer,
Trustee or Paying Agent that is an Initial Sub-Servicer, use commercially
reasonable efforts to cause, and (ii) with respect to each other Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans, cause to forward a copy of each such statement (or, in the
case of the Trustee and the Paying Agent, make a copy of each such statement
available on its internet website) to the Rating Agencies and the Directing
Certificateholder. Promptly after receipt of each such Officer's Certificate,
the Depositor may review each such Officer's Certificate and, if applicable,
consult with the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as applicable, as to the nature of any failures by the Master
Servicer, the Special Servicer, the Trustee or the Paying Agent, respectively,
or any related Additional Servicer with which the Master Servicer, the Special
Servicer, the Trustee or the Paying Agent, as applicable, has entered into a
servicing relationship with respect to the Mortgage Loans in the fulfillment of
any of the Master Servicer's, Special Servicer's, Trustee's and Paying Agent's
or Additional Servicer's obligations hereunder or under the applicable
sub-servicing or primary servicing agreement. The obligations of the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent and each
Additional Servicer under this Section apply to the Master Servicer, the Special
Servicer, the Trustee and the Paying Agent and each Additional Servicer that
serviced a Mortgage Loan during the applicable period, whether or not the Master
Servicer, the Special Servicer, the Trustee, the Paying Agent or Additional
Servicer is acting as the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent or Additional Servicer at the time such Officer's Certificate
is required to be delivered. None of the Master Servicer, Special Servicer or
Additional Servicer shall be required to cause the delivery of any such
statement until April 15 in any given year so long as it has received written
confirmation from the Depositor that a report on Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year.
In the event the Master Servicer, the Special Servicer, the Trustee
or the Paying Agent is terminated or resigns pursuant to the terms of this
Agreement, such party shall provide, and each of the Master Servicer and the
Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by
such party that is an Additional Servicer that resigns or is terminated under
any applicable servicing agreement, use its reasonable efforts to cause and (ii)
with respect to any other Additional Servicer engaged by such party that resigns
or is terminated under any applicable servicing agreement, cause such Additional
Servicer to provide, an annual statement of compliance pursuant to this Section
11.09 with respect to the period of time that the Master Servicer, the Special
Servicer, the Trustee or the Paying Agent was subject to this Agreement or the
period of time that such Additional Servicer was subject to such other servicing
agreement.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 of each year, commencing in March
2007, the Master Servicer, the Special Servicer, the Trustee and the Paying
Agent, each at its own expense, shall furnish (and each such party shall (i)
with respect to each Initial Sub-Servicer engaged by such Master Servicer,
Special Servicer, Trustee or Paying Agent that is a Servicing Function
Participant, use commercially reasonable efforts to cause and (ii) with respect
to each other Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans, cause to furnish) to
the Trustee, the Paying Agent and the Depositor, with a copy to the Rating
Agencies (which copy shall be deemed furnished by the Trustee and Paying Agent
when made available on its internet website), a report on an assessment of
compliance with the Servicing Criteria applicable to it 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 Relevant 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 11.05, 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.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address the Relevant
Servicing Criteria specified on a certification substantially in the form of
Exhibit X hereto delivered to the Depositor on the Closing Date. Promptly after
receipt of each such report, (i) the Depositor may review each such report and,
if applicable, consult with each Reporting Servicer as to the nature of any
material instance of noncompliance with the Servicing Criteria applicable to it
(and each Servicing Function Participant engaged or utilized by each Reporting
Servicer, as applicable), and (ii) the Trustee shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Exhibit X and notify the Depositor of any exceptions. None
of the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or
any Servicing Function Participant shall be required to cause the delivery of
any such assessments until April 15 in any given year so long as it has received
written confirmation from the Depositor that a report on Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
(b) The Master Servicer, the Special Servicer, the Trustee and the
Paying Agent and any Servicing Function Participant with which the Master
Servicer, Special Servicer, Trustee or Paying Agent has entered into a servicing
relationship hereby acknowledge and agree that the Relevant Servicing Criteria
set forth on Exhibit X is appropriately set forth with respect to such party.
(c) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor as to the name of each Additional Servicer engaged by it and each
Servicing Function Participant utilized by it, in each case other than with
respect to any Initial Sub-Servicer, and the Trustee and the Paying Agent shall
notify the Depositor as to the name of each Servicing Function Participant
utilized by it, and each such notice will specify what specific Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant. When the Master Servicer, the Special
Servicer, the Trustee and the Paying Agent submit their assessments pursuant to
Section 11.10(a), the Master Servicer, the Special Servicer, the Trustee and the
Paying Agent, as applicable, will also at such time include the assessment (and
related attestation pursuant to Section 11.11) of each Servicing Function
Participant engaged by it.
In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide (and each of the Master Servicer and the
Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by
such Master Servicer or Special Servicer that is an Additional Servicer that
resigns or is terminated under any applicable servicing agreement, use its
reasonable efforts to cause such Additional Servicer and (ii) with respect to
any other Additional Servicer that resigns or is terminated under any applicable
servicing agreement, cause such Additional Servicer to provide) an annual
assessment of compliance pursuant to this Section 11.10, coupled with an
attestation as required in Section 11.11 with respect to the period of time that
the Master Servicer, the Special Servicer, the Trustee or the Paying Agent was
subject to this Agreement or the period of time that the Additional Servicer was
subject to such other servicing agreement.
Section 11.11 Annual Independent Public Accountants' Attestation
Report. On or before March 15 of each year, commencing in March 2007, the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent, each at its
own expense, shall cause (and the Master Servicer, the Special Servicer, the
Trustee and the Paying Agent shall (i) with respect to each Initial Sub-Servicer
engaged by such Master Servicer, Special Servicer, Trustee or Paying Agent that
is a Servicing Function Participant use commercially reasonable efforts to cause
and (ii) with respect to each other Servicing Function Participant with which it
has entered into a servicing relationship with respect to the Mortgage Loans
cause) a registered public accounting firm (which may also render other services
to the Master Servicer, the Special Servicer, the Trustee, the Paying Agent or
the applicable Servicing Function Participant, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish a
report to the Trustee, the Paying Agent and the Depositor, with a copy to the
Rating Agencies and the Directing Certificateholder (which copy shall be deemed
furnished by the Trustee and Paying Agent when made available on its internet
website), to the effect that (i) it has obtained a representation regarding
certain matters from the management of such Reporting Servicer, which includes
an assertion that such Reporting Servicer has complied with the Relevant
Servicing Criteria applicable to it 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 issuing an opinion as to whether such
Reporting Servicer's assessment of compliance with the Relevant Servicing
Criteria applicable to it was fairly stated in all material respects. In the
event that 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. Each such related accountant's attestation report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act. Such report must be available for general
use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent or any Servicing Function
Participant, (i) the Depositor may review the report and, if applicable, consult
with the Master Servicer, the Special Servicer, the Trustee or the Paying Agent
as to the nature of any defaults by the Master Servicer, the Special Servicer,
the Trustee or any Servicing Function Participant with which it has entered into
a servicing relationship with respect to the Mortgage Loans, as the case may be,
in the fulfillment of any of the Master Servicer's, the Special Servicer's, the
Trustee's, the Paying Agent's or the applicable Servicing Function Participants'
obligations hereunder or under the applicable sub-servicing or primary servicing
agreement, and (ii) the Trustee shall confirm that each accountants' attestation
report submitted pursuant to this Section relates to an assessment of compliance
meeting the requirements of Section 11.10 and notify the Depositor of any
exceptions. None of the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent nor any Additional Servicer shall be required to deliver, or shall
be required to cause the delivery of, such reports until April 15 in any given
year so long as it has received written confirmation from the Depositor that a
Form 10-K is not required to be filed with respect to the Trust for the
preceding fiscal year.
Section 11.12 Indemnification. Each of the Master Servicer, the
Special Servicer, the Trustee and the Paying Agent shall indemnify and hold
harmless each Certification Party from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Certification Party
arising out of (i) an actual breach by the Master Servicer, the Special
Servicer, the Trustee or the Paying Agent, as the case may be, of its
obligations under this Article XI or (ii) negligence, bad faith or willful
misconduct on the part of the Master Servicer, the Special Servicer, the Trustee
or the Paying Agent in the performance of such obligations.
The Master Servicer, the Special Servicer, the Trustee and the
Paying Agent shall (i) with respect to any Initial Sub-Servicer engaged by the
Master Servicer, Special Servicer, Trustee or Paying Agent that is a Servicing
Function Participant or Additional Servicer, use commercially reasonable efforts
to cause such party to and (ii) with respect to each other Additional Servicer
and each Servicing Function Participant with which, in each case, it has entered
into a servicing relationship with respect to the Mortgage Loans to cause such
party to indemnify and hold harmless each Certification Party from and against
any and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments and any other costs, fees 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 compliance reports or attestation reports pursuant to the
applicable sub-servicing or primary servicing agreement or (ii) negligence, bad
faith or willful misconduct on its part in the performance of such obligations
or (iii) any failure by a Servicer (as defined in Section 11.02(b)) to identify
a Servicing Function Participant pursuant to Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee or the Paying Agent (the "Performing Party")
shall contribute to the amount paid or payable to the Certification Party as a
result of the losses, claims, damages or liabilities of the Certification Party
in such proportion as is appropriate to reflect the relative fault of the
Certification Party on the one hand and the Performing Party on the other in
connection with a breach of the Performing Party's obligations pursuant to
Sections 11.06, 11.09, 11.10 or 11.11 (or breach of its 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, the Special Servicer,
the Trustee and the Paying Agent shall (i) with respect to any Initial
Sub-Servicer engaged by the Master Servicer, Special Servicer, Trustee or Paying
Agent that is a Servicing Function Participant or Additional Servicer, use
commercially reasonable efforts to cause such party to and (ii) with respect to
each other Additional Servicer or Servicing Function Participant, in each case,
with which it has entered into a servicing relationship with respect to the
Mortgage Loans cause such party to agree to the foregoing indemnification and
contribution obligations. This Section 11.12 shall survive the termination of
this Agreement or the earlier resignation or removal of the Master Servicer, the
Special Servicer, the Trustee or the Paying Agent.
Section 11.13 Amendments. This Article XI 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 and the Xxxxxxxx-Xxxxx Act 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 that the reports and certificates required
to be prepared pursuant to Sections 11.09, 11.10 and 11.11 shall not be
eliminated without Rating Agency confirmation.
Section 11.14 Regulation AB Notices. Any notice required to be
delivered by the Paying Agent or the Trustee, as the case may be, to the
Depositor pursuant to this Article XI may be delivered via email (and
additionally delivered via phone or telecopy), notwithstanding the provisions of
Section 12.05, to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, telecopy number:
000-000-0000, telephone number: 000-000-0000 and email:
Xxxxxx.x.xxxxx@xxxxxxxx.xxx, with a copy to Xxxxxx Xxxxx, Managing Director and
Associate General Counsel, JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000, telephone number:
000-000-0000 and email: Xxxxx_xxxxxx@xxxxxxxx.xxx.
[End of Article XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided that the Trustee has received an Opinion of
Counsel (at the expense of the party requesting such amendment) to the
effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any
such tax and (b) such action will not adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to the related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as
evidenced by a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto and (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency
and, in the case of the Bank of America Plaza Companion Note, a Rating
Agency rating any class of Bank of America Plaza Companion Loan
Securities, to such effect;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, and, in the case of the Bank of
America Plaza Companion Note, a Rating Agency rating any class of Bank of
America Plaza Companion Loan Securities, to such effect provided that such
change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Bank of
America Plaza Companion Loan Securities, as evidenced by a letter from
each Rating Agency to such effect; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicer, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (b) such
modification does not adversely affect the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion of Counsel
and (c) each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or
qualification of any of the then current ratings of any Class of
Certificates or Bank of America Plaza Companion Loan Securities;
provided that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66(2)/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
(c) Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment hereto without having first received an
Opinion of Counsel (at the Trust Fund's expense) to the effect that such
amendment is permitted hereunder and that such amendment or the exercise of any
power granted to the Master Servicer, the Depositor, the Special Servicer, the
Trustee, the Paying Agent or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the Bank of America Plaza Companion Noteholder and the
Trustee and shall furnish a copy of such amendment to each Rating Agency and any
Rating Agency rating any Bank of America Plaza Companion Loan Securities.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section 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 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 12.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates or any Class of Bank of America Plaza Companion Loan
Securities.
Section 12.02 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 Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 12.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder 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 from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
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 the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 12.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to a Mortgage Loan Seller, a Master Servicer and the Trustee
which shall be deemed to have been duly given only when received), to: (i) in
the case of the Depositor, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxx, Vice President, telecopy number: (000) 000-0000, with a copy to X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Managing Director and
Associate General Counsel, telecopy number: (000) 000-0000; (ii) in the case of
the Master Servicer, Xxxxx Fargo Bank, N.A., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing (with a
copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000
Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, telecopy number:
(000) 000-0000; (iii) in the case of the Special Servicer, LNR Partners, Inc.,
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000; Attention: Xxxxx
Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq., telecopy number: (000) 000 0000 and
Attention: Xxxxxx Xxxxxxx, telecopy number: (000) 000-0000, with copies to
Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx, LLP, 000 X. Xxxxxxxx Xxxx., Xxxxx 0000,
Xxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxx, Esq., telecopy number: (305)
351-2229; (iv) in the case of the Directing Certificateholder, Xxxx Xxxxxx,
telecopy number: (000) 000-0000; (v) in the case of the Trustee and the Paying
Agent, LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services - X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Trust Series 2006-CIBC17, telecopy
number: (000) 000-0000; (vi) in the case of the Rating Agencies, (a) Fitch,
Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Commercial Mortgage
Backed Securities Group, telecopy number: (000) 000-0000; and (b) Xxxxx'x
Investors Services, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Surveillance Group, telecopy number: (212)
553-0300; (vii) in the case of the Mortgage Loan Sellers, (a) JPMorgan Chase
Bank, National Association, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx: Xxxxxx
Xxxxx, Vice President, telecopy number: (000) 000-0000; and (b) CIBC Inc., 000
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Real Estate
Finance Group, telecopy number: (000) 000-0000; (viii) in the case of any
Companion Holder or any mezzanine lender, the address set forth in the related
Intercreditor Agreement; or, as to each such Person, such other address as may
hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Account, the Distribution Accounts, the Gain-on-Sale Reserve
Account, the Interest Reserve Account and, if established, the REO Account, and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 12.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
Section 12.08 Successors and Assigns; Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. Each Mortgage
Loan Seller and each Companion Holder (and their agents, including any trustee
or servicer with respect to the Bank of America Plaza Companion Note) is an
intended third-party beneficiary in respect of the respective rights afforded it
hereunder. No other person, including, without limitation, any Mortgagor, shall
be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
Section 12.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 12.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency (and any
Rating Agency for any Bank of America Plaza Companion Loan Securities to the
extent applicable to the Bank of America Plaza Whole Loan) with respect to each
of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the Master
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement.
(b) The Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency (and any Rating
Agency for any Bank of America Plaza Companion Loan Securities to the extent
applicable to the Bank of America Plaza Whole Loan) copies of inspection reports
and other items delivered to each of the Master Servicer and Special Servicer
pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of the Distribution Accounts and (ii)
the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Master Servicer and the
Special Servicer, as applicable, shall furnish to each Rating Agency (and any
Rating Agency for any Bank of America Plaza Companion Loan Securities to the
extent applicable to the Bank of America Plaza Whole Loan) with respect to each
Mortgage Loan such information as the Rating Agency shall reasonably request and
which the Trustee, the Paying Agent, the Master Servicer or Special Servicer,
can reasonably provide in accordance with applicable law and without waiving any
attorney-client privilege relating to such information or violating the terms of
this Agreement or any Mortgage Loan documents. The Trustee, the Master Servicer
and Special Servicer, as applicable, may include any reasonable disclaimer it
deems appropriate with respect to such information. Notwithstanding anything to
the contrary herein, nothing in this Section 12.10 shall require a party to
provide duplicative notices or copies to the Rating Agencies with respect to any
of the above listed items.
[End of Article XII]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.,
Depositor
By: /s/ Xxxxxxx X. Xxx
--------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
Master Servicer
By: /s/ Xxxxxxx XxXxxxx
--------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Sr. Vice President
LNR PARTNERS, INC.,
Special Servicer
By: /s/ Xxxxxx X.Xxxxxx
--------------------------------------
Name: Xxxxxx X.Xxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and Paying Agent
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: AVP
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28 day of November, 2006, before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxx known to me to be a Vice
President of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Notary Public
[SEAL]
My commission expires:
2/14/10
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On November 21, 2006, before me, Xxxxxx X. Xxxxxxxx, Notary Public,
personally appeared Xxxxxxx X. XxXxxxx, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on
the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
[NOTARIAL SEAL]
/s/ Xxxxxx X. Xxxxxxxx L.S.
------------------------------
Xxxxxx X. Xxxxxxxx, Notary Public
My Commission Expires: December 2, 0000
XXXXX XX XXXXXXX )
) SS.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 21st day of November,
2006, by Xxxxxx X. Xxxxxx, as Vice President on behalf of LNR Partners, Inc., a
Florida corporation; such individual is personally known to me or has produced a
driver's license as identification.
/s/ Xxxxx X. Xxxxxx
-------------------------------
Print Name: Xxxxx X. Xxxxxx
Notary Public, State of Florida
[NOTARIAL SEAL]
My commission expires:
6/6/08
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 22 day of November, 2006, before me, a notary public in and
for said State, personally appeared Xxxx Xxxxxxxx known to me to be a AVP of
LaSalle Bank National Association, that executed the within instrument, and also
known to me to be the person who executed it on behalf of such national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxx
--------------
Notary Public
[SEAL]
My commission expires:
9/21/2009
EXHIBIT A-1
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.2790% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $70,459,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF NOVEMBER 28, 2006 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E AB 6
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EAB65
DECEMBER 12, 2006
APPROXIMATE AGGREGATE COMMON CODE NO.: 27717268
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES CERTIFICATE NO.: A-1-[--]
AS OF THE CLOSING DATE: $70,459,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Trustee, the Paying Agent, the Depositor, the Master
Servicer and the Special Servicer, with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66(2)/3% of the
Percentage Interests of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of Certificates of such Class; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4500% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $105,767,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF NOVEMBER 28, 2006 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E AC 4
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EAC49
DECEMBER 12, 2006
APPROXIMATE AGGREGATE COMMON CODE NO.: 27717560
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES CERTIFICATE NO.: A-3-[--]
AS OF THE CLOSING DATE: $105,767,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from
time to time by the Trustee, the Paying Agent, the Depositor, the Master
Servicer and the Special Servicer, with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66(2)/3% of the
Percentage Interests of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of Certificates of such Class; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4290% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $[500,000,000] SPECIAL SERVICER: LNR PARTNERS, INC.
[500,000,000] [222,397,000]
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF NOVEMBER 28, 2006 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E AD 2
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EAD22
DECEMBER 12, 2006
APPROXIMATE AGGREGATE COMMON CODE NO.: 27717829
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES CERTIFICATE NO.: A-4-[--]
AS OF THE CLOSING DATE:
$1,222,397,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS A-SB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4150% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $89,092,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF NOVEMBER 28, 2006 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E AA 8
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EAA82
DECEMBER 12, 2006
APPROXIMATE AGGREGATE COMMON CODE NO.: 27715435
CERTIFICATE BALANCE
OF THE CLASS A-SB CERTIFICATES CERTIFICATE NO.: A-SB-[--]
AS OF THE CLOSING DATE: $89,092,000
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-SB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-SB Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-SB Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-SB Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS A-1A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4260% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $288,112,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF NOVEMBER 28, 2006 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E AE 0
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EAE05
DECEMBER 12, 2006
APPROXIMATE AGGREGATE COMMON CODE NO.: 27718060
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES CERTIFICATE NO.: A-1A-[--]
AS OF THE CLOSING DATE: $288,112,000
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS X
THIS CLASS X CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS X
CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: XXXXX FARGO BANK, N.A.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $[500,000,000] TRUSTEE: LASALLE BANK NATIONAL
[500,000,000] [500,000,000] ASSOCIATION
[500,000,000] [500,000,000]
[36,896,225] PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 CUSIP NO.: 46630E AF 7
CUT-OFF DATE: AS DEFINED IN THE ISIN NO.: US46630EAF79
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) COMMON CODE: 27719040
CLOSING DATE: NOVEMBER 28, 2006 CERTIFICATE NO.: X-[--]
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X CERTIFICATES AS OF THE
CLOSING DATE: $2,536,896,225
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Master Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount, and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS A-M
THIS CLASS A-M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4640% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $253,689,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF NOVEMBER 28, 2006 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E AG 5
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EAG52
DECEMBER 12, 2006
APPROXIMATE AGGREGATE COMMON CODE: 27718566
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES CERTIFICATE NO.: A-M-[--]
AS OF THE CLOSING DATE: $253,689,000
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-M Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-M Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4890% SUBJECT TO MASTER SERVICER: XXXXX FARGO BANK, N.A.
A MAXIUM RATE AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $202,952,000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF NOVEMBER 28, 2006 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46630E AH 3
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46630EAH36
CLOSING DATE: NOVEMBER 28, 2006 COMMON CODE: 27718795
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: A-J-[--]
DECEMBER 12, 2006
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $202,952,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.5430%, SUBJECT MASTER SERVICER: XXXXX FARGO BANK, N.A.
TO A MAXIMUM RATE AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $44,396,000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46630E AJ 9
DEFINED HEREIN)
ISIN NO.: US46630EAJ91
CLOSING DATE: NOVEMBER 28, 2006
COMMON CODE: 27719236
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 CERTIFICATE NO.: B-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $44,396,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.5830%, SUBJECT MASTER SERVICER: XXXXX FARGO BANK, N.A.
TO A MAXIMUM RATE AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $19,027,000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46630E AK 6
DEFINED HEREIN)
ISIN NO.: US46630EAK64
CLOSING DATE: NOVEMBER 28, 2006
COMMON CODE: 27719473
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 CERTIFICATE NO.: C-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $19,027,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.6220%, SUBJECT MASTER SERVICER: XXXXX FARGO BANK, N.A.
TO A MAXIMUM RATE AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $34,882,000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46630E AL 4
DEFINED HEREIN)
ISIN NO.: US46630EAL48
CLOSING DATE: NOVEMBER 28, 2006
COMMON CODE: 27719503
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 CERTIFICATE NO.: D-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $34,882,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS E
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: XXXXX FARGO BANK, N.A.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $31,711,000 OR AS TRUSTEE: LASALLE BANK NATIONAL
OTHERWISE SET FORTH ON SCHEDULE A ASSOCIATION
HERETO
PAYING AGENT: LASALLE BANK NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF NOVEMBER 28, 2006
CUSIP NO.: U48070 AA 1(1), 46630E AM
CUT-OFF DATE: AS DEFINED IN THE 2(2), 46630E AY 6(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48070AA13(1),
US46630EAM21(2), US46630EAY68(3)
CLOSING DATE: NOVEMBER 28, 2006
COMMON CODE NO.: 27721362(1), 27723926(2)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 CERTIFICATE NO.: E-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $31,711,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: XXXXX FARGO BANK, N.A.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $34,882,000 OR AS TRUSTEE: LASALLE BANK NATIONAL
OTHERWISE SET FORTH ON SCHEDULE A ASSOCIATION
HERETO
PAYING AGENT: LASALLE BANK NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF NOVEMBER 28, 2006
CUSIP NO.: U48070 AB 9(1), 46630E AN
CUT-OFF DATE: AS DEFINED IN THE 0(2), 46630E AZ 3(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48070AB95(1),
US46630EAN04(2), US46630EAZ34(3)
CLOSING DATE: NOVEMBER 28, 2006
COMMON CODE NO.: 27721869(1), 27724329(2)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 CERTIFICATE NO.: F-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $34,882,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: XXXXX FARGO BANK, N.A.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $31,712,000 OR AS TRUSTEE: LASALLE BANK NATIONAL
OTHERWISE SET FORTH ON SCHEDULE A ASSOCIATION
HERETO
PAYING AGENT: LASALLE BANK NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF NOVEMBER 28, 2006
CUSIP NO.: U48070 AC 7(1), 46630E AP
CUT-OFF DATE: AS SET FORTH IN THE 5(2), 46630E BA 7(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48070AC78(1),
US46630EAP51(2), US46630EBA73(3)
CLOSING DATE: NOVEMBER 28, 2006
COMMON CODE NO.: 27722075(1), 27724680(2)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 CERTIFICATE NO.: G-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $31,712,000
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(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: XXXXX FARGO BANK, N.A.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $31,711,000 OR AS TRUSTEE: LASALLE BANK NATIONAL
OTHERWISE SET FORTH ON SCHEDULE A ASSOCIATION
HERETO
PAYING AGENT: LASALLE BANK NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF NOVEMBER 28, 2006
CUSIP NO.: U48070 AD 5(1), 46630E AQ
CUT-OFF DATE: AS SET FORTH IN THE 3(2), 46630E BB 5(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48070AD51(1),
US46630EAQ35(2), US46630EBB56(3)
CLOSING DATE: NOVEMBER 28, 2006
COMMON CODE NO.: 27722377(1), 27724957(2)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 CERTIFICATE NO.: H-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $31,711,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.1470% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $9,513,000 OR AS SPECIAL SERVICER: LNR PARTNERS, INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48070 AE 3(1), 46630E AR
DEFINED HEREIN) 1(2), 46630E BC 3(3)
CLOSING DATE: NOVEMBER 28, 2006 ISIN NO.: USU48070AE35(1),
US46630EAR18(2), US46630EBC30(3)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006
COMMON CODE NO.: 27722547(1), 27725350(2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: J-[--]
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $9,513,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.1470% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $9,514,000 OR AS SPECIAL SERVICER: LNR PARTNERS, INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48070 AF 0(1), 46630E AS
DEFINED HEREIN) 9(2), 46630E BD 1(3)
CLOSING DATE: NOVEMBER 28, 2006 ISIN NO.: USU48070AF00(1),
US46630EAS90(2), US46630EBD13(3)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 COMMON CODE NO.: 27722709(1), 27725686(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: K-[--]
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $9,514,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.1470% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $9,513,000 OR AS SPECIAL SERVICER: LNR PARTNERS, INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48070 AG 8(1), 46630E AT
DEFINED HEREIN) 7(2), 46630E BE 9(3)
CLOSING DATE: NOVEMBER 28, 2006 ISIN NO.: USU48070AG82(1),
US46630EAT73(2), US46630EBE95(3)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 COMMON CODE NO.: 27722873(1), 27725899(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: L-[--]
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $9,513,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.1470% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $3,171,000 OR AS SPECIAL SERVICER: LNR PARTNERS, INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48070 AH 6(1), 46630E AU
DEFINED HEREIN) 4(2), 46630E BF 6(3)
CLOSING DATE: NOVEMBER 28, 2006 ISIN NO.: USU48070AH65(1),
US46630EAU47(2), US46630EBF60(3)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 COMMON CODE NO.: 27735592(1), 27726178(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: M-[--]
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $3,171,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.1470% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $6,342,000 OR AS SPECIAL SERVICER: LNR PARTNERS, INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48084 AJ 3(1), 46630E AV
DEFINED HEREIN) 2(2), 46630E BG 4(3)
CLOSING DATE: NOVEMBER 28, 2006 ISIN NO.: USU48070AJ22(1),
US46630EAV20(2), US46630EBG44(3)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 COMMON CODE NO.: 27723233(1), 27726496(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: N-[--]
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $6,342,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.1470% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $6,343,000 OR AS SPECIAL SERVICER: LNR PARTNERS, INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48070 AK 9(1), 46630E AW
DEFINED HEREIN) 0(2), 46630E BH 2(3)
CLOSING DATE: NOVEMBER 28, 2006 ISIN NO.: USU48070AK94(1),
US46630EAW03(2), US46630EBH27(3)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 COMMON CODE NO.: 27735789(1), 27726852(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: P-[--]
CERTIFICATE BALANCE
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $6,343,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class P Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS NR
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.1470% MASTER SERVICER: XXXXX FARGO BANK, N.A.
DENOMINATION: $31,711,225 OR AS SPECIAL SERVICER: LNR PARTNERS, INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48070 AL 7(1), 46630E AX
DEFINED HEREIN) 8(2), 46630E BJ 8(3)
CLOSING DATE: NOVEMBER 28, 2006 ISIN NO.: USU48070AL77(1),
US46630EAX85(2), US46630EBJ82(3)
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2006 COMMON CODE NO.: 27723527(1), 27727077(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: NR-[--]
CERTIFICATE BALANCE
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $31,711,225
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain on Sale Account
and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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 OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: XXXXX FARGO BANK, N.A.
CERTIFICATE: 100%
SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E BK 5
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EBK55
DECEMBER 12, 2006
CERTIFICATE NO.: R-[--]
CLASS R PERCENTAGE INTEREST: 100%
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-CIBC17, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. 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 OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: XXXXX FARGO BANK, N.A.
CERTIFICATE: 100%
SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF NOVEMBER 28, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: NOVEMBER 28, 2006 CUSIP NO.: 46630E BL 3
FIRST DISTRIBUTION DATE: ISIN NO.: US46630EBL39
DECEMBER 12, 2006
CERTIFICATE NO.: LR-[--]
CLASS LR PERCENTAGE INTEREST: 100%
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
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 Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities as evidenced by
a letter from each Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders (other
than the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person; to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of the Bank of America Plaza
Companion Note, a Rating Agency rating any class of Bank of America Plaza
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
and, in the case of the Bank of America Plaza Companion Note, a Rating Agency
rating any class of Bank of America Plaza Companion Loan Securities, to such
effect; provided that such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or Bank of America Plaza Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Bank of America
Plaza Companion Loan Securities; provided that no such amendment changes in any
manner the obligations of any Mortgage Loan Seller under a Mortgage Loan
Purchase Agreement without the consent of such Mortgage Loan Seller or adversely
affect any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Bank of America
Plaza Companion Loan Securities by any Rating Agency, amend the Servicing
Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: November 28, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
______________________________________________________________________________
(Please print or typewrite name and address of assignee)
______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated:_______________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
JPMCC 2006-CIBC17
Mortgage Loan Schedule (Combined)
Loan # Mortgagor Name Property Address City State Zip Code
------ ---------------------------------------- ------------------------------------ ------------------ -------- --------
1 BF ATL, LLC, BF ATL II, LLC, BF ATL 000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000
III, LLC, BF ATL IV, LLC, BF ATL V, LLC
2 Centro Heritage SPE 1 LLC, Centro Various Various Various Various
Xxxxxxx SPE 1 LLC, Centro Heritage
Royal Oaks L.P., Centro Xxxxxxx
Heritage Square LLC, Heritage Old
Bridge LLC, Xxxxxxx Spring Mall Limited
Partnership, Xxxxxxxxxx Square
Associates Limited Partnership
2.01 000 Xxxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000
2.02 0000 XX Xxxxx 0 Xxx Xxxxxx XX 00000
2.03 10972-11116 Xxxxx Xxxx Xxxxxxxxxx Xx Xxxxxx XX 00000
2.04 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
2.05 11803-11815 Westheimer Xxxxxxx XX 00000
2.06 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx XX 00000
2.07 000 Xxxxx Xxxxx Xxxxx 00 Xxxxxxxxxx XX 00000
2.08 36 and 000-000 Xxxx 00xx Xxxxxx Xxxxxxxxx XX 00000
2.09 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX 00000
2.1 0000-0000 Xxxxx Xxxx Xxxxxxxxx Xxxx Xxxxx XX 00000
2.11 0000 Xxxxx 00xx Xxxxxx Xxxxxxxxxx XX 00000
2.12 0000 Xxxxxx Xxxx Xxxx Xxxxx Xxxx Xxxx XX 00000
2.13 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
2.14 0000-0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
3 MG Hotel SPE LLC 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx XX 00000
4 CNL Plaza Ltd. & CNL Plaza II Ltd. Xxxxxxx Xxxxxxx XX 00000
4.01 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
4.02 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
5 Centro Independence LLC 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
6 Behringer Harvard Three Parkway, LLC 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
7 Cityview Apartments Associates LP 2, Xxxxxxx Xxxxxxx XX 00000
LLLP
7.01 00000 Xxxx Xxxxxx Xxxxxxx XX 00000
7.02 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
7.03 000 Xxxxxx Xxxx Xxxxxxx XX 00000
7.04 000 Xxxxxx Xxxx Xxxxxxx XX 00000
7.05 000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
7.06 00000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
7.07 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
8 Columbia Properties Newark, LLC 000 Xxxxxxxx Xxxx Xxxxxx XX 00000
9 Bee Cave Galleria I, LP and Bee Cave XX 000 & Xxxxx Xxxxxxx 00 Xxxx Xxx Xxxx XX 00000
Galleria II, LP
10 Great Neck Towers LLC, NN Great Neck 000 Xxxxx Xxxx Xxxx Xxxxx Xxxx XX 00000
Towers, LLC, HH Great Neck Towers, LLC,
Eljan Great Neck Towers, LLC
00 Xxxxxxxx Xxxx Xxxxxxxx XXX, XX 0000 Xxxxxxx Xxxxxxxxx XX 00000
Waterway LLC and Xxxxxxx Headquarters
Waterway LLC
11.01 0000 X'Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
11.02 0000 X'Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
11.03 0000-0000 X'Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
12 D Design Holdings, L.P. 0000 Xxxxx Xxxxxxxx Xxxxxxx & 0000 Xxxxxx XX 00000
Xxxxxx Street
13 TS Midtown Holdings, LLC 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
00 Xxxxxx Xxx Xxxxxxx XXX Limited 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
Partnership, Hawaii Kai Building B
Limited Partnership, Hawaii Kai
Building E Limited Partnership
15 Magic Valley Mall LLC 0000 Xxxx Xxxx Xxxx Xxxx Xxxx Xxxxx XX 00000
16 Chase Green Mountain Limited Partnership 000 Xxxxx Xxxx Xxxxxx Xxxxxxx XX 00000
00 Xxxxxxx-Xxxxx Xxxxx Xxxxxxxx, XXX, 0000, 1821, 0000 Xxxx Xxx Xxxxxx Xxxxx XX 00000
Xxxxxxx-Xxxxx Tempe Holdings II, LLC, Parkway
Xxxxxxx-Xxxxx Tempe Holdings III, LLC
18 HRI/LS, LLC 000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxxx XX 00000
00 Xxxxxxx Xxxxxxx (Xxxxxxxxxx) Investors, 000 Xxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000
LLC, Xxxxxxx Capital (Naperville)
Investors 1, LLC, Xxxxxxx Capital
(Naperville) Investors 2, LLC, Xxxxxxx
Capital (Naperville) Investors 3, LLC,
Xxxxxxx Capital (Naperville) Investors
4, LLC, Xxxxxxx Capital (Naper
00 XX Xxxxxx Xxxxx Xxxxxxxxxx, X.X. 0000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx Xxxxx XX 00000
21 471 Culebra Market, L.P. 0000 Xxxx Xxxx 0000 Xxxxx Xxx Xxxxxxx XX 00000
00 Xxxxx Xxxxx Center Manager, LLC 00000 Xxxxx Xxxxx Xxxx Xxxxxxxxxxxx XX 00000
00 XX Xxxxxxxxx XX, XXX XXX Xxxxx Xxxx 436 & Cranes Roost Xxxxxxxxx Xxxxxxx XX 00000
Boulevard
24 WA Shoppes, LLC 000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
25 Tenalok Partners, Ltd. Various Various Various Various
25.01 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
25.02 0000-0000 Xxxx Xxxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000
Boulevard
25.03 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
25.04 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
25.05 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
26 Mission Brentwood, DST 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
27 W 54-7 LLC 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
00 Xxxxxx Xxxx Acquisition, LLC 000 XX Xxxxx 0 Xxxxxx XX 00000
29 Points East, LLC, Prima Casa, LLC, NSF 0000 Xxxxxx Xxxxxx Xxxxxx XX 00000
Investments, LLC, SHT Points East, LLC,
Xxxxxxxx Fairport, LLC, Des-Pointe
East, LLC
00 0000-0000 W. Alondra & 2214-2302 W. Xxxxxxx Xxxxxxx XX Xxxxxxx
Xxxxxxx, XXX, 00000-00000 Valley, LLC
and 4349-4369 Central, LLC
30.01 0000-0000 Xxxxxxx Xxxxxxxxx & Xxxxxxx XX 00000
0000-0000 Xxxx Xxxxxxx Xxxxxxxxx
30.02 00000-00000 Xxxxxx Xxxxxxxxx Xx Xxxxx XX 00000
30.03 0000-0000 Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
31 CEP Expo Investors LLC 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
00 Xxxxxxxxx Xxxxxxx Xxxxxxxxx, LLC 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
33 East Hartford Founders LLC 00 Xxxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000
34 XX XX - Sunnyside, LLC 5640, 5760 and 0000-0000 Xxxxxxxxx Xxxxxxxxxx XX 00000
Avenue
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx, XXX, XX 0000 Xxxxx Xxxx XX Xxxxxxxx XX 00000
Associates Kennesaw, LLC, Wolfsnar
Kennesaw, LLC, Prospect Kennesaw, LLC,
Xxxxxxx Kennesaw, LLC
36 RP Altamonte I, LLC 000 Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX 00000
37 POAL BL NQ, LLC Various Various Various Various
37.01 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX 00000
37.02 0000 Xxx Xxxxxx Xxxx Xxxxxxx XX 00000
37.03 0000 Xxx Xxxxxx Xxxx Xxxxxxx XX 00000
37.04 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.05 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.06 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.07 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.08 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.09 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.1 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.11 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.12 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.13 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
37.14 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
38 7312 Parkway Associates LLC 0000 Xxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000
39 Lakepoint Office Park, LLC, SHT 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx XX 00000
Lakepoint, LLC
40 Torrey Heights Medical Building LLC and 0000 Xxxxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000
Carmel Valley Medical Building, LLC
41 Xxxxxx Farms Realty, LLC 0000 Xxxxxxx Xxx Xxxxx Xxxxxxxxxx XX 00000
42 Xxxxxx Centre, LLC 0000 Xxxxx 00xx Xxxxxx Xxxxxxxxx XX 00000
43 Arbors of Traverse West, LLC 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxx XX 00000
44 Xxxxxxx Xxxx City, LLC Xxxxxxx Xxxx Xxxx XX 00000
44.01 0000 Xxx Xxxxxxxxx Xxxx Xxxx XX 00000
44.02 0000 Xxxxxxxx Xxxxx Xxxx Xxxx XX 00000
45 FWI 29 LLC 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxx XX 00000
46 Southland Office Investors, LLC 00000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
47 7437 RR Associates, LLC 0000 Xxxx Xxxx Xxxxxxx XX 00000
48 Xxxxxxxxxx I Associates, L.P. 00 Xxxxxxxxxx Xxxxxx Xxxxxxxx XX 00000
49 7301 Parkway Associates LLC 0000 Xxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000
50 Majestic Texas-Grapevine, L.P. 0000 Xxxxx XX 00 Xxxxx Xxxx XX 00000
51 Pecan-Waco Investors, LLC 0000 Xxxx Xxxxx Xxxxx Xxxx XX 00000
52 21800 Burbank FBS, LLC 00000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxx XX 00000
53 PM Foxfire Tempe, LLC 0000 Xxxx 0xx Xxxxxx Xxxxx XX 00000
54 Glenbend, LLC 0000 Xxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
55 Northland 260 Xxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxxxxx XX 00000
56 Woodhollow-Waco, LLC 0000 Xxxx Xxxxx Xxxxx Xxxx XX 00000
57 MRI Saddlehorn Superstition Investment 0000 Xxxx Xxxxxxx Xxxxxx Xxxx XX 00000
Fund, LLC
00 Xxxxxxx Xxxxxx Partnership 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
00 Xxxxx Xxx Xxxxxxxx Xxxxxx Associates, 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
L.P.
60 Xxxxxx/Xxxxxxx Penn, LLC 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
00 Xxx Xxxxx Xxxxxxxx, LLC 0000 Xxxxxxxxx Xxxxxx XX Xxxxx XX 00000
62 Milan-Camino Oruga, L.L.C., Milan-East Various Various Various Various
Park Row, L.P., Milan-Tacoma, L.P.,
Milan-Xxxxxx, X.X.
62.01 00000 Xxxxxx Xxxx Xxxxxxx XX 00000
62.02 000 Xxxxxx Xxxxx Xxxx XX 00000
62.03 0000 Xxxx Xxxx Xxx Xxxxx Xxxxxxxxx XX 00000
62.04 0000 Xxxxxx Xxxxx Xxxxxxx XX 00000
63 XXX Xxxxx Xxxxxx LLC 0000 Xxx Xxxx Xxxxxxx Xxxxx Xxxxxx XX 00000
00 Xxx Xxxxxxxx Xxxxx XX, X.X. 00 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
65 Eastside Dunhill, Ltd. 7440 & 0000 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
66 The Chancellor, LLC 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000
67 Killeen ATM LLC 000 Xxxxx Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000
68 Xxx Xxxxxxxxxxxxx Hospitality, Inc. 0000 XX 00xx Xxxxxx Xxxxxxxxxxx XX 00000
69 Majestic Realty Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
70 Beaumont Medical Building-Xxxxxx, LLC 0000 Xxxxxx Xxxx Xxxxxx XX 00000
71 RGMH Properties East LLC 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxxxxx XX 00000
72 Terrace Shopping Center Limited 000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
73 Jerc Partners VI, L.P., Warminster 0000-0000 Xxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
Square, L.P.
74 Xxxxxxx-Xxxxxx Associates, LLC 000 Xxxxx Xxxxxxx 00 Xxxxxxxxxx XX 00000
75 9950 Cheyenne LLC 0000 Xxxx Xxxxxxxx Xxxxxx Xxx Xxxxx XX 00000
00 Xxxxxx Xxxxxx Partners-Win, LLC, Alori 00000 Xxxxxxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
Properties-600 West 51 St Win, LLC,
Alori Properties-2302 Xxxx Win LLC,
Alori Properties-1904 San Xxxxxxx Win,
LLC, Alori Properties-6811 Great
Northern Win, LLC
77 Glendale Shopping Center SPE, L.L.C. 000-000 Xxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX 00000
78 All Storage GB, L.P. 0000 Xxxxxxxx Xxxx Xxxx Xxxxx XX 00000
79 Uptown Realty Unlimited LLC 000-000 Xxxx Xxxxxxxxxx Xxxxxx Xxx Xxxx XX 00000
00 Xxx Xxxxxxxx xx Xxxxxx Xxxx XX, X.X.X. 000 Xxxxxx Xxxx Xxxxx Xxxxxxxxxxxx XX 00000
81 Royal Patriot, LLC 5104 & 0000 Xxxxxxx Xxxxx Xxxxxxxxx XX 00000
00 Xxxxxxxxxx Xxxxxxxxxx Xxxx, LLC 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
83 Xxxxx Xxxxx, Inc. 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
84 Los Gatos Gateway, LLC 00000 Xxx Xxxxx Xxxxxxxxx Xxx Xxxxx XX 00000
85 Rosedale Village II, LLC 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxx XX 00000
00 Xxxxxxxxxxxx Xxx Tree Partners, LTD 0000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
87 The Retreat (GFI) Apartments, LLLP 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
88 United Commercial Holdings, LLC 00000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
89 Galleria West Associates, LLP 00000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
90 2350 North Forest LLC 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000
91 Corporate Retail, L.L.C. 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxxx XX 00000
92 Sun Group Homes, LLC 0000 Xxxx Xxxxx Xxxxxx Xxxxxx XX 00000
00 Xxxxxxxx Xxxxxx Acquisition, LLC 000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
94 BSJ Realty, L.L.C. 000 Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000
95 000 Xxxxxx Xxxxxx Realty LLC 0000-0000 Xxxxx Xxxx and 4659-4675 Xxxxxxxx XX 00000
Xxxx Xxxx
00 Seashore Equities, LLC 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX 00000
97 Xxxxxxxx, LLC 00000 Xxxxx Xx Xxxxxx Xxxx Xx Xxxxxx XX 00000
98 Rosewood Realty Trust 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
99 Eckville LP 0000 Xxxx Xxxxxx Xxxxxxxxxxx XX 00000
100 815 Realty LLC 000-000 Xxxx 000 Xxxxxx Xxx Xxxx XX 00000
101 The Shoppes at Dunkirk LLC and Country 00000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
Plaza Manager LLC
102 Walnor, LLC 0000 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxx XX 00000
103 Posh Properties No. 27, Forks Family 0000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000
Limited Partnership
104 Park Ten of Houston LLC, D/B/A In Texas 00000 Xxxx Xxx Xxxxx Xxxxxxx XX 00000
as Park Ten of Houston Building, LLC,
Houston Point, L.L.C., Swamp Cabbage
Properties, LLC, JD of Naples, LLC,
D/B/A In Texas as JD of Naples
Broadview, LLC, Walbar II, LLC, D/B/A
Houston Walbar II, LLC, T&R
Investments, LLC, D/B/A In Texas as San
Antonio T&R Investments, LLC
105 Gratiot Retail Center, LLC 00000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
000 Xxxxx Xxxxx Xxxx Xxxxxx, LLC 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxx XX 00000
000 Xxxx Xxxxx Partners, LLC 0000-0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
000 Xxxx Xxxx Associates 0000 Xxxxx Xxxx Xxxxx Xxxxxxxxxx XX 00000
109 Xxxxxxx Shopping Center, LLC 265 and 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
110 VP Partners, L.L.C. 0000 Xxxxxxx Xxxxx Xxxxxxxxxxx XX 00000
111 RP CVS Goldenrod, LLC 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX 00000
112 Xxxxxxxx II LLC 000 Xxxxxxxx Xxxx Xxxxxxxx XX 00000
113 Xxxxx Merrifalls LLC 0000 Xxx Xxxxxxx Xxxxx Xxxxxx XX 00000
114 Landmark Manor, L.L.C. 000 Xxxxxxxx Xxxxx Xxxxx Xxxxxx XX 00000
115 Professional Properties of the Palm 9121 - 0000 Xxxxx Xxxxxxxx Xxxxx Xxxx Xxxxx XX 00000
Beaches, Inc. Gardens
116 1781 Riverside LLC 0000-0000 Xxxxxxxxx Xxxxx Xxx Xxxx XX 00000
000 Xxxxx Xxxxx Xxxxx LP 0000 Xxxxxx X Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx XX 00000
118 133 West L.L.C. 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
119 Motor II LLC 000 Xxxxx Xxxxxxx Xxxxxxxxx XX 00000
120 0000 Xxx Xxxxxxx, LLC 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
000 Xxxxxxx Xxxx Limited Partnership, 0000-0000 Xxxxxxx Xxxx Xxx Xxxxxx XX 00000
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx
122 11250 North Central, L.P. 00000 Xxxxx Xxxxxxx Xxxxxxxxxx Xxxxxx XX 00000
123 Xxxxxx-Xxxxxxx Limited Partnership 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000
000 Xxxxx Xxxx Xxxxxxxxx, LLC 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000
125 Sayona Hospitality, LLC 0000 X X Xxxxxxx Xxxxx Xxxxxxx Xxxxxx XX 00000
126 Houston HD Industrial Building, L.P. 00000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
000 Xxxxxx Xxxxxxxxx, L.L.C. 0000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
128 EPT Southview Apartments I, LLC & EPT 000 Xxxxx Xxxxxxxxx Xxxxx Xx Xxxx XX 00000
Southview Apartments II, LLC
129 Xxxxxx LLC 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
130 BSPM Hospitality LLC 000 Xxxxx Xxxxxx Xxx Xxxxxxxxxxx XX 00000
131 Xxxxxx Management, LLC 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxx Limited Partnership 0 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx Xxxx Phase I, Ltd. 0000 Xxxxxxx Xxxxx Xxxx Xxxxx Xxxx XX 00000
134 Devi Ten LLC 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxx XX 00000
135 1318-1320 W. Broad Street, LLC 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
136 Fort Xxxxx Lodgings, L.L.C. 000 Xxxxxxx Xxxx Xxxx Xxxx Xxxxx XX 00000
137 Oakhill Manor Apartments Limited 0000 Xxxx 00xx Xxxxxxx Xxxxxx Xxxx XX 00000
Partnership
138 Xxxxxxx River Associates, LLC 0000 Xxxxxx Xxxx Xxxxxxxx XX 00000
000 Xxxxxxx Xxxxxxxx Xxxx, LLC 00000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000
000 Xxxxxxx Xxxxxxxx, LLC 0000 Xxxxxxx Xxxxxxx Xxxxxxx XX 00000
141 Pennsylvania Properties Management 000 Xxxxx 00xx Xxxxxx Xxxxxxxxxx XX 00000
Company
000 Xxxxxx Xxxx. Equities LLC 000-000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
143 The Shoppes of Hebron, LLC 0000 Xxxxx Xxxx Xxxx Xxxxxx XX 00000
000 Xxxx Xxxxx Professional Building, LLC 0-0000 Xxxxx Xxxxxxx Xxxxx XX 00000
145 TP Investors, LLC 0000 Xxx Xxxxx Xxxxxxxxxx XX 00000
146 TP Investors, LLC 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
147 RP Alafaya, LLC 0 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxx XX 00000
148 TP Investors, LLC 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
149 TP Investors, LLC 000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
150 610 LLC 000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000
151 Xxxx Xxxxxxxxx Enterprises, Inc. 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000
Interest Net Mortgage
Loan # County Property Name Size Measure Rate (%) Interest Rate
------ ---------------- -------------------------------------------- -------- ----------- --------- --------------
1 Xxxxxx Bank of America Plaza 1253499 Square Feet 6.12640 6.10560
2 Various Centro Heritage Portfolio 2746128 Square Feet 5.39400 5.37320
2.01 Xxxx Commons of Chicago Ridge 324530 Square Feet 5.39400
2.02 Middlesex Old Bridge Gateway 235995 Square Feet 5.39400
2.03 Ozaukee Mequon Pavilions 213436 Square Feet 5.39400
2.04 Xxxxxx Xxxxxxxx Square 318435 Square Feet 5.39400
2.05 Xxxxxx Xxxxx Xxxx Xxxxxxx 000000 Square Feet 5.39400
2.06 Xxxxxxxxxx Xxxxxxxxxx Square 330226 Square Feet 5.39400
2.07 Dupage Heritage Square 210753 Square Feet 5.39400
2.08 Xxxxxxxx Xxx Xxxx/ Xxxxxxxxx Xxx 000000 Square Feet 5.39400
2.09 Broward Shoppers Haven Shopping Center 206942 Square Feet 5.39400
2.1 Xxxxx Apple Xxxx Crossing 150446 Square Feet 5.39400
2.11 Milwaukee Spring Mall 188861 Square Feet 5.39400
2.12 Xxxxxx Xxxxx Bear Hills 73095 Square Feet 5.39400
2.13 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx 00000 Square Feet 5.39400
2.14 Peoria Xxxxxxxxxxx Xxxxxx 00000 Square Feet 5.39400
3 New York Residence Inn Times Square 357 Rooms 6.15000 6.12920
4 Orange CNL Center I & II 620887 Square Feet 5.89200 5.87120
4.01 Orange CNL Center I 345941 Square Feet 5.89200
4.02 Orange CNL Center II 274946 Square Feet 5.89200
0 Xxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxxxx Independence 493432 Square Feet 6.17350 6.15270
6 Philadelphia Three Parkway 561631 Square Feet 5.47500 5.45420
7 Xxxxxx CityView Portfolio II 2226 Units 6.18000 6.15920
7.01 Xxxxxx City View Place 881 Units 6.18000
7.02 Xxxxxx Springfield 440 Units 6.18000
7.03 Xxxxxx Anniston 292 Units 6.18000
7.04 Xxxxxx Xxxxxxx 216 Units 6.18000
7.05 Xxxxxx Charleston 154 Units 6.18000
7.06 Xxxxxx Xxxxxxxx 184 Units 6.18000
7.07 Xxxxxx Cambridge 59 Units 6.18000
8 Essex Sheraton at Newark International Airport 504 Rooms 6.28000 6.25920
9 Xxxxxx The Shops at the Galleria 487067 Square Feet 5.67150 5.65070
10 Nassau The Towers 160262 Square Feet 6.50000 6.47920
00 Xxxxxxxxx Xxxx Xxxxxx'x Xxxx 384107 Square Feet 6.38000 6.33920
11.01 Xxxxxxxxx Xxxx Xxxx Xxxx 000000 Xxxxxx Feet 6.38000
11.02 Baltimore City Xxxxx Xxx 000000 Square Feet 6.38000
11.03 Xxxxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxxx 00000 Square Feet 6.38000
12 Dallas Dallas Design Center 370577 Square Feet 5.73300 5.71220
13 New York 00 X 00xx Xx 135150 Square Feet 6.13750 6.11670
14 Honolulu Hawaii Kai Shopping Center 140210 Square Feet 6.44000 6.41920
15 Twin Falls Magic Valley Mall 368535 Square Feet 5.99000 5.96920
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxx 213358 Square Feet 5.97000 5.94920
00 Xxxxxxxx Xxx Xxxx Xxxxxxxx Xxxx 293791 Square Feet 5.88000 5.85920
00 Xxxxxxxxx Xxxxxxxxxxx Xxxxxxx 000000 Square Feet 5.76000 5.73920
00 Xx Xxxx Xxxxxxxxxx Xxxxxx 000000 Xxxxxx Feet 6.20750 6.18670
20 Tarrant AMLI on the Green 424 Units 5.78000 5.75920
21 Bexar Culebra Market 194166 Square Feet 5.65000 5.62920
22 Xxxxxxxxxx Xxxxx Xxxxx Xxxxxx 000000 Square Feet 5.90700 5.88620
00 Xxxxxxxx Xxxxxxxxx Xxxx Center II 77592 Square Feet 5.73000 5.70920
24 Charleston Xxxx Xxxxxx Shoppes 141260 Square Feet 5.93000 5.90920
25 Various Com Realty Portfolio 394102 Square Feet 6.00000 5.97920
25.01 Xxxxxx Xxxxxxx Village 141611 Square Feet 6.00000
25.02 Washington Bartlesville Plaza 88866 Square Feet 6.00000
25.03 Xxxxxxxxx Three Notch Plaza 45899 Square Feet 6.00000
25.04 Xxxxxx Xxxxxxx Plaza 91549 Square Feet 6.00000
25.05 Xxxxxx Xxxxxxx Center 26177 Square Feet 6.00000
26 Davidson Archstone Brentwood Apartments 380 Units 5.88750 5.86670
27 New York 000 Xxxx 00xx Xxxxxx 71 Units 5.83100 5.81020
00 Xxxxxxxxx Xxxxxx Xxxx Shopping Center 103996 Square Feet 5.95000 5.88920
00 Xxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxx 000000 Xxxxxx Feet 6.06000 6.03920
00 Xxx Xxxxxxx Xxxxxxxx Xxxxxxxxx 00000 Various 5.87000 5.84920
30.01 Los Angeles Alondra Apartments 103 Units 5.87000
30.02 Xxx Xxxxxxx Xx Xxxxx 00000 Square Feet 5.87000
30.03 Los Angeles Xxxxxxx Xxxxxx Xxxxx 00000 Square Feet 5.87000
31 Sacramento Allied Insurance Building 132418 Square Feet 6.12800 6.10720
00 Xxxxxxxxx Xxxxxxxxx XX 000000 Square Feet 5.55970 5.52890
33 Hartford 00 Xxxxxxxx Xxxxx 000000 Xxxxxx Feet 6.26000 6.23920
00 Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxx 000000 Square Feet 6.08300 6.01220
35 Xxxx Bridges of Kennesaw Apartments 296 Units 6.08000 6.05920
00 Xxxxxxxx Xxxxxxxxx Xxxx Center I 79514 Square Feet 5.73000 5.70920
37 Various Xxxxxx Xxxx and Northlake Portfolio 164882 Square Feet 6.51436 6.49356
37.01 DeKalb Xxxxxxxxx Xxxxxxxxxx 00000 Square Feet 6.51436
37.02 Shelby 0000 Xxx Xxxxxx Xxxx 7212 Square Feet 6.51436
37.03 Shelby 0000 Xxx Xxxxxx Xxxx 7016 Square Feet 6.51436
37.04 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.05 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.06 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.07 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.08 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.09 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.1 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.11 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.12 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.13 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
37.14 Shelby 0000 Xxxxxx Xxxx Xxxx 0000 Square Feet 6.51436
38 Xxxx Arundel 0000 Xxxxxxx Xxxxx Xxxxx 000000 Xxxxxx Feet 5.88000 5.85920
00 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxx 000000 Xxxxxx Feet 6.25750 6.18670
00 Xxx Xxxxx Xxxxxx Xxxxx Family Medical Center 44101 Square Feet 6.44000 6.41920
41 Xxxxxxxx Xxxxxx Farm Apartments 264 Units 5.72000 5.69920
42 Milwaukee Xxxxxx Centre 194800 Square Feet 6.22750 6.20670
43 Grand Traverse Phase I: Arbors of Traverse 216 Units 6.30900 6.25820
00 Xxxxxx Xxxx Xxxx Xxxxxxx and Holiday Inns Portfolio 157 Rooms 6.89000 6.86920
44.01 Summit Holiday Inn Express 76 Rooms 6.89000
44.02 Summit Xxxxxxx Xxx & Xxxxxx 00 Xxxxx 0.00000
00 Xxxxxxxx Xxxxx Xxxxxxx Shopping Center 196589 Square Feet 5.80000 5.77920
00 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx 000000 Xxxxxx Feet 6.24000 6.21920
47 Xxxx Arundel 0000 Xxxx Xxxx 000000 Xxxxxx Feet 5.88000 5.85920
00 Xxxxx 00 Xxxxxxxxxx Xxxxxx 107734 Square Feet 6.00000 5.97920
49 Xxxx Arundel 0000 Xxxxxxx Xxxxx Xxxxx 00000 Xxxxxx Feet 5.88000 5.85920
50 Xxxxxxxxxx Xxxxxx'x Crossing Shopping Center 76091 Square Feet 6.16000 6.13920
51 Mclennan Pecan Ridge Apartments 252 Units 5.90000 5.87920
52 Los Angeles 21800 Burbank 58886 Square Feet 6.17950 6.15870
53 Maricopa Foxfire Apartments 188 Xxxxx 0.00000 0.00000
00 Xxxxxxxx Xxxxxxxx Crossing Shopping Center 145442 Square Feet 6.20000 6.17920
55 Middlesex Linens N' Things 35591 Square Feet 5.80000 5.77920
56 McLennan Woodhollow Apartments 220 Units 5.90000 5.87920
57 Maricopa Superstition Villas 249 Units 5.99500 5.97420
00 Xxxxxx Xxxxxxx Xxxxxx Shopping Center 206233 Square Feet 5.87750 5.83170
59 Philadelphia Adam's Run Shopping Center 93656 Square Feet 6.20000 6.17920
60 Northampton Xxxxxx Super Center 98862 Square Feet 6.13000 6.10920
00 Xxxx Xxx Xxxxx Xxxx 131718 Square Feet 5.99000 5.96920
62 Various Clay Portfolio 118638 Square Feet 6.05000 6.02920
62.01 Xxxxxx Aqua Services 57798 Square Feet 6.05000
62.02 Napa United Rental Facility - Napa 20200 Square Feet 6.05000
62.03 Tarrant Xxxxxxxxx Xxxx 20640 Square Feet 6.05000
62.04 Xxxxxx United Rental Facility - Xxxxxxx 00000 Square Feet 6.05000
00 Xxxxxx Xxxx'x Xxxxxxxx Xxxxx - Xxxxxx 00000 Square Feet 6.61000 6.58920
00 Xxx Xxxxxxx Xxx Xxxxxxxx Xxxxx XX 00000 Square Feet 6.12300 6.10220
00 Xxxxx Xxxx Xxxx Xxxxx 00000 Xxxxxx Feet 5.94000 5.91920
00 Xxxxxx Xxxx Xxxx Apartments 282 Units 6.11000 6.08920
00 Xxxx Xxxxxxxx Xxxxx 149334 Square Feet 5.89000 5.86920
00 Xxxxxxx Xxxxxxx Xxx & Xxxxxx - Xxxxxxxxxxx, XX 90 Rooms 6.18000 6.15920
69 New York 000 Xxxx 00xx Xxxxxx 64 Units 5.83100 5.81020
70 Macomb Beaumont Medical Building 35219 Square Feet 5.85650 5.77070
00 Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxx XX 000 Xxxx 6.14500 6.05420
00 Xxxxxx Xxxxxxx Shopping Center 80712 Square Feet 6.10000 6.07920
73 Bucks Xxxxxxxxxx Xxxxxx 00000 Square Feet 5.97000 5.87920
00 Xxxxxxxx Xxxxxxxxxxxx Xxxxx XX 00000 Square Feet 6.32000 6.29920
75 Xxxxx Xxxxxxxx - ROCGD 32850 Square Feet 6.15000 6.07920
76 Xxxxxx Xxxxxxxxxx Xxxxxx 00000 Square Feet 6.00000 5.97920
77 Du Page Glendale Shopping Center 89631 Square Feet 5.98000 5.95920
00 Xxxxxxx Xxxxxxxx Xxxx All Storage 1281 Units 5.92500 5.90420
00 Xxx Xxxx 000 Xxxx Xxxxxxxxxx Ave 115 Units 5.83100 5.81020
80 Cumberland The Preserve at Grande Oaks II 75 Units 5.80000 5.77920
81 Xxxxxxxxx Center at Monocacy 74240 Square Feet 6.10400 6.02320
00 Xxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxx 118470 Square Feet 6.46000 6.37920
83 Lowndes Country Inn & Suites - Valdosta, GA 71 Rooms 6.18000 6.15920
00 Xxxxx Xxxxx Xxx Xxxxx Xxxxxxx 00000 Square Feet 5.66000 5.63920
00 Xxxx Xxxxxxxx Xxxxxxx XX 00000 Xxxxxx Feet 6.20000 6.17920
00 Xxxxx Xxx Xxxx Xxxxxxxxxx 000 Units 5.98830 5.87750
87 Xxxxxx The Retreat Apartments 274 Units 5.93000 5.90920
88 Orange 00000 Xxxxxxxxxx Xxxxxx 41366 Square Feet 6.15000 6.12920
89 Waukesha Galleria West Shopping Center 63926 Square Feet 5.92000 5.89920
90 Erie Saint Rita's 63359 Square Feet 6.01000 5.98920
00 Xxxx Xxxxx Xxxxx Xxxxxxxxx Crossing at Bocage 33625 Square Feet 6.25000 6.22920
92 Xxxxxxxxx Westwood Apartments 194 Units 6.55000 6.52920
93 Worcester Xxxxxxxx Commerce Center 204890 Square Feet 6.02000 5.95920
94 Bergen 000 Xxxxxx Xxxxxxxxx 00000 Xxxxxx Feet 5.95000 5.92920
95 Franklin The Patio Shops 51400 Square Feet 6.08000 6.05920
96 Harford Business Center at Riverside 45000 Square Feet 6.07000 6.04920
97 Maricopa The Palms of El Mirage 153 Pads 5.85000 5.82920
00 Xxxxxxx Xxxxxxxx Crossing Apartments 42 Units 6.10000 6.07920
00 Xxxxxx Xxxxxx'x - Xxxxxxxxxxx, XX 00000 Square Feet 5.97000 5.94920
100 New York 000 Xxxx 000 Xxxxxx 69 Units 5.83100 5.81020
101 Xxxxxxx Country Plaza 31883 Square Feet 5.95900 5.93820
000 Xxxxxx Xxxxxxx Xxxxx 00000 Xxxxxx Feet 5.85000 5.82920
000 Xxxxxxxxxxx Xxxxx Center at Xxxxxxxx Trail 31225 Square Feet 6.13000 6.05920
000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx 00000 Xxxxxx Feet 5.95000 5.92920
105 Macomb Gratiot Retail 17929 Square Feet 6.25000 6.19920
000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxxx Xxxxxx XXX 00000 Square Feet 6.29250 6.27170
107 Xxxxx Sage Creek Apartments 125 Units 6.14000 6.11920
000 Xxxxxxx Xxxxxxxx Xxxxxxx Apartments 92 Units 6.00000 5.97920
109 Maricopa Xxxxxxx Shopping Center 33203 Square Feet 6.18000 6.15920
110 Xxxxxx Value Place 121 Rooms 6.30000 6.27920
111 Orange CVS Goldenrod 13013 Square Feet 5.63000 5.60920
112 Suffolk 000 Xxxxxxxx Xxxx 00000 Xxxxxx Feet 6.16000 6.13920
113 Fairfax Xxxxxxxxxx Xxxxx 00000 Square Feet 6.05000 6.02920
114 Jefferson Landmark Manor MHP 176 Pads 6.15000 6.12920
000 Xxxx Xxxxx Xxxxxxx Professional Center 56650 Square Feet 6.14500 6.07420
116 New York 0000 Xxxxxxxxx Xxxxx 69 Units 5.83100 5.81020
000 Xxxxxxx Xxxxx Xxxxx Xxxxx 120624 Square Feet 6.10000 6.07920
118 New York 000 Xxxx 00xx Xxxxxx 36 Units 5.83100 5.81020
119 Suffolk 000 Xxxxx Xxxxxxx 00000 Xxxxxx Feet 6.16000 6.13920
120 Fairfax City Regency Furniture 23298 Square Feet 6.13000 6.10920
121 Atlantic Xxxxxx Xxxxxxx Xxxx Xxxxxxxxx 000000 Xxxxxx Feet 5.67000 5.64920
122 Dallas 00000 X. Xxxxxxx Xxxxxxxxxx 00000 Xxxxxx Feet 6.10000 6.07920
123 Xxxxxxx 000 Xxxxx Xxxx Xxxxxx 00000 Xxxxxx Feet 5.90000 5.87920
000 Xxxxxxxx Xxxxx Xxxx Apartments 192 Units 6.28000 6.25920
000 Xxxxxxxx Xxxxxxx Xxx Xxxxxxx - Xxxxxxx Xxxxxx 71 Rooms 6.51700 6.42620
000 Xxxxxx Xxxx Xxxxx - Xxxxxxx 00000 Square Feet 6.03000 6.00920
000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Shopping Center 24484 Square Feet 6.07100 6.05020
128 El Paso Southview Apartments 121 Units 5.91000 5.83920
000 Xxx Xxxxxxxxxx Xxxxx 00000 Xxxxxx Feet 6.23000 6.20920
130 Berkeley Days Inn - Martinsburgh 62 Rooms 6.46700 6.37620
131 Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.92000 5.89920
000 Xxxxxxxxx 0 Xxxxxxxx Xxxxx 00000 Xxxxxx Feet 6.16000 6.13920
000 Xxxxxxxxxx Xxxxxxxx Xxxxxx 00000 Square Feet 6.43000 6.40920
134 Massac Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxxx 00 Rooms 6.36250 6.27170
135 Richmond City 0000 Xxxx Xxxxx Xxxxxx 25 Units 6.19700 6.08620
136 De Xxxx Holiday Inn Express - Fort Xxxxx 60 Rooms 6.05000 5.95920
137 Xxxxxxx Oakhill Manor Apartments 160 Units 6.18000 6.06920
138 Xxxxxx Cabinet Discounters 35575 Square Feet 5.93000 5.90920
000 Xxx Xxxxxxx Xxxxxxx Xxxxxxxx Xxxx 00000 Xxxxxx Feet 6.11500 6.04420
140 Midland Xxxxxxx Crossing 19436 Square Feet 6.40000 6.37920
000 Xxxxxxx Xxxx Xxxxxx Apartments 70 Units 6.00000 5.97920
000 Xxxxxxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 6.38000 6.35920
143 Xxxxx Shoppes of Hebron 17341 Square Feet 6.00000 5.88920
000 Xxxxx Xxxx Xxxxx Xxxxxxxxxxxx Xxxxxxxx 00000 Xxxxxx Feet 6.37500 6.35420
000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx 00 Units 5.90000 5.87920
000 Xxxxx Xxxxxxxxx Xxxxx Apartments 59 Units 5.90000 5.87920
000 Xxxxxxxx Xxxxxxx Xxxxxx 0000 Square Feet 5.82000 5.79920
000 Xxxxxxxx Xxxx Xxxxx I Apartments 49 Units 5.90000 5.87920
000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx Apartments 50 Units 5.90000 5.87920
150 New York 000 Xxxx 000xx Xxxxxx 34 Units 5.83100 5.81020
000 Xxxx Xxxxx Xxxxxxx Xxxxx 00000 Square Feet 6.18000 6.10920
Original Rem. Maturity/ARD Amort. Rem. Monthly Servicing
Loan # Balance Cutoff Balance Term Term Date Term Amort. Debt Service Fee Rate Accrual Type
------ ----------- -------------- ---- ---- ------------ ------ ------ ------------ -------- ------------
1 263,000,000 263,000,000 120 119 10/01/16 0 0 1,361,351 0.02000 Actual/360
2 220,936,419 220,936,419 120 120 11/01/16 0 0 1,006,902 0.02000 Actual/360
2.01 25,720,000 25,720,000 120 120 11/01/16 0 0 0.02000
2.02 24,490,000 24,490,000 120 120 11/01/16 0 0 0.02000
2.03 23,860,000 23,860,000 120 120 11/01/16 0 0 0.02000
2.04 23,430,000 23,430,000 120 120 11/01/16 0 0 0.02000
2.05 22,630,000 22,630,000 120 120 11/01/16 0 0 0.02000
2.06 17,440,000 17,440,000 120 120 11/01/16 0 0 0.02000
2.07 16,770,000 16,770,000 120 120 11/01/16 0 0 0.02000
2.08 16,320,000 16,320,000 120 120 11/01/16 0 0 0.02000
2.09 14,960,000 14,960,000 120 120 11/01/16 0 0 0.02000
2.1 13,100,000 13,100,000 120 120 11/01/16 0 0 0.02000
2.11 11,880,000 11,880,000 120 120 11/01/16 0 0 0.02000
2.12 4,576,419 4,576,419 120 120 11/01/16 0 0 0.02000
2.13 3,730,000 3,730,000 120 120 11/01/16 0 0 0.02000
2.14 2,030,000 2,030,000 120 120 11/01/16 0 0 0.02000
3 151,000,000 150,598,843 120 118 09/01/16 300 298 986,787 0.02000 Actual/360
4 138,000,000 138,000,000 120 120 11/01/16 0 0 686,991 0.02000 Actual/360
4.01 83,000,000 83,000,000 120 120 11/01/16 0 0 0.02000
4.02 55,000,000 55,000,000 120 120 11/01/16 0 0 0.02000
5 110,000,000 110,000,000 120 120 11/01/16 0 0 573,764 0.02000 Actual/360
6 67,125,000 67,125,000 120 120 11/01/16 360 360 380,076 0.02000 Actual/360
7 60,260,000 60,158,439 120 117 08/01/16 420 417 350,911 0.02000 Actual/360
7.01 22,677,867 22,639,646 120 117 08/01/16 420 417 0.02000
7.02 11,307,660 11,288,602 120 117 08/01/16 420 417 0.02000
7.03 7,960,373 7,946,957 120 117 08/01/16 420 417 0.02000
7.04 5,482,260 5,473,020 120 117 08/01/16 420 417 0.02000
7.05 5,083,260 5,074,693 120 117 08/01/16 420 417 0.02000
7.06 5,067,300 5,058,760 120 117 08/01/16 420 417 0.02000
7.07 2,681,280 2,676,761 120 117 08/01/16 420 417 0.02000
8 60,000,000 59,803,450 120 116 07/01/16 360 356 370,602 0.02000 Actual/360
9 56,000,000 56,000,000 120 116 07/01/16 360 360 324,014 0.02000 Actual/360
10 46,500,000 46,500,000 120 120 11/01/16 0 0 255,373 0.02000 Actual/360
11 40,300,000 40,300,000 120 116 07/01/16 360 360 251,551 0.04000 Actual/360
11.01 18,000,000 18,000,000 120 116 07/01/16 360 360 0.01000
11.02 16,350,000 16,350,000 120 116 07/01/16 360 360 0.01000
11.03 5,950,000 5,950,000 120 116 07/01/16 360 360 0.01000
12 39,000,000 39,000,000 120 119 10/01/16 360 360 227,172 0.02000 Actual/360
13 38,500,000 38,500,000 120 119 10/01/16 360 360 234,241 0.02000 Actual/360
14 33,000,000 33,000,000 300 298 09/01/31 360 360 207,282 0.02000 Actual/360
15 33,000,000 33,000,000 120 120 11/01/16 360 360 197,640 0.02000 Actual/360
16 33,000,000 33,000,000 120 119 10/01/16 0 0 166,455 0.02000 Actual/360
17 30,800,000 30,800,000 120 120 11/01/16 360 360 182,292 0.02000 Actual/360
18 26,000,000 26,000,000 120 119 10/01/16 360 360 151,894 0.02000 Actual/360
19 23,175,000 23,175,000 120 118 09/01/16 360 360 142,052 0.02000 Actual/360
20 22,750,000 22,750,000 120 120 11/01/16 0 0 111,101 0.02000 Actual/360
21 22,600,000 22,600,000 120 120 11/01/16 0 0 107,886 0.02000 Actual/360
22 22,000,000 22,000,000 120 120 11/01/16 360 360 130,589 0.02000 Actual/360
23 21,510,000 21,510,000 60 60 11/01/11 360 360 125,253 0.02000 Actual/360
24 20,500,000 20,500,000 120 120 11/01/16 360 360 121,987 0.02000 Actual/360
25 20,400,000 20,400,000 120 120 11/01/16 360 360 122,308 0.02000 Actual/360
25.01 11,200,000 11,200,000 120 120 11/01/16 360 360 0.02000
25.02 2,600,000 2,600,000 120 120 11/01/16 360 360 0.02000
25.03 2,600,000 2,600,000 120 120 11/01/16 360 360 0.02000
25.04 2,300,000 2,300,000 120 120 11/01/16 360 360 0.02000
25.05 1,700,000 1,700,000 120 120 11/01/16 360 360 0.02000
26 20,000,000 20,000,000 120 120 11/01/16 360 360 118,467 0.02000 Actual/360
27 18,800,000 18,800,000 120 120 11/01/16 0 0 92,621 0.02000 Actual/360
28 18,400,000 18,400,000 120 119 10/01/16 360 360 109,727 0.06000 Actual/360
29 18,250,000 18,250,000 120 119 10/01/16 360 360 110,123 0.02000 Actual/360
30 18,190,000 18,174,403 120 119 10/01/16 360 359 107,543 0.02000 Actual/360
30.01 8,000,000 7,993,140 120 119 10/01/16 360 359 0.02000
30.02 5,750,000 5,745,070 120 119 10/01/16 360 359 0.02000
30.03 4,440,000 4,436,193 120 119 10/01/16 360 359 0.02000
31 17,000,000 17,000,000 84 82 09/01/13 0 0 88,019 0.02000 Actual/360
32 17,000,000 17,000,000 120 120 11/01/16 360 360 97,162 0.03000 Actual/360
33 17,000,000 17,000,000 120 119 10/01/16 360 360 104,783 0.02000 Actual/360
34 16,100,000 16,100,000 120 120 11/01/16 0 0 82,747 0.07000 Actual/360
35 16,000,000 16,000,000 120 118 09/01/16 0 0 82,193 0.02000 Actual/360
36 15,400,000 15,400,000 60 60 11/01/11 360 360 89,675 0.02000 Actual/360
37 15,100,000 15,100,000 120 117 08/01/16 360 360 94,729 0.02000 Actual/360
37.01 5,583,000 5,583,000 120 117 08/01/16 360 360 0.02000
37.02 911,000 911,000 120 117 08/01/16 360 360 0.02000
37.03 853,000 853,000 120 117 08/01/16 360 360 0.02000
37.04 834,000 834,000 120 117 08/01/16 360 360 0.02000
37.05 834,000 834,000 120 117 08/01/16 360 360 0.02000
37.06 775,000 775,000 120 117 08/01/16 360 360 0.02000
37.07 756,000 756,000 120 117 08/01/16 360 360 0.02000
37.08 716,000 716,000 120 117 08/01/16 360 360 0.02000
37.09 659,000 659,000 120 117 08/01/16 360 360 0.02000
37.1 659,000 659,000 120 117 08/01/16 360 360 0.02000
37.11 640,000 640,000 120 117 08/01/16 360 360 0.02000
37.12 640,000 640,000 120 117 08/01/16 360 360 0.02000
37.13 620,000 620,000 120 117 08/01/16 360 360 0.02000
37.14 620,000 620,000 120 117 08/01/16 360 360 0.02000
38 15,000,000 15,000,000 120 120 11/01/16 360 360 88,779 0.02000 Actual/360
39 14,800,000 14,800,000 120 118 09/01/16 360 360 91,198 0.07000 Actual/360
40 14,350,000 14,326,245 84 82 09/01/13 360 358 90,136 0.02000 Actual/360
41 13,760,000 13,760,000 120 120 11/01/16 360 360 80,038 0.02000 Actual/360
42 13,625,000 13,625,000 120 119 10/01/16 360 360 83,692 0.02000 Actual/360
43 13,200,000 13,200,000 120 119 10/01/16 360 360 81,782 0.05000 Actual/360
44 13,100,000 13,080,496 60 58 09/01/11 360 358 86,189 0.02000 Actual/360
44.01 6,620,700 6,610,843 60 58 09/01/11 360 358 0.02000
44.02 6,479,300 6,469,653 60 58 09/01/11 360 358 0.02000
45 13,060,000 13,060,000 120 120 11/01/16 360 360 76,630 0.02000 Actual/360
46 13,000,000 13,000,000 120 116 07/01/16 360 360 79,959 0.02000 Actual/360
47 13,000,000 13,000,000 120 120 11/01/16 360 360 76,941 0.02000 Actual/360
48 12,000,000 12,000,000 120 119 10/01/16 360 360 71,946 0.02000 Actual/360
49 12,000,000 12,000,000 120 120 11/01/16 360 360 71,023 0.02000 Actual/360
50 11,500,000 11,500,000 120 120 11/01/16 360 360 70,136 0.02000 Actual/360
51 11,425,000 11,425,000 120 120 11/01/16 360 360 67,766 0.02000 Actual/360
52 11,350,000 11,350,000 120 118 09/01/16 360 360 69,364 0.02000 Actual/360
53 11,000,000 11,000,000 120 120 11/01/16 360 360 67,015 0.02000 Actual/360
54 10,300,000 10,300,000 120 118 09/01/16 360 360 63,084 0.02000 Actual/360
55 10,300,000 10,300,000 84 83 10/01/13 0 0 50,475 0.02000 Actual/360
56 10,025,000 10,025,000 120 120 11/01/16 360 360 59,462 0.02000 Actual/360
57 10,000,000 10,000,000 120 119 10/01/16 360 360 59,923 0.02000 Actual/360
58 9,800,000 9,800,000 120 115 06/01/16 360 360 57,986 0.04500 Actual/360
59 9,800,000 9,792,299 120 119 10/01/16 360 359 60,022 0.02000 Actual/360
60 9,600,000 9,600,000 120 119 10/01/16 360 360 58,362 0.02000 Actual/360
61 9,500,000 9,500,000 120 118 09/01/16 360 360 56,896 0.02000 Actual/360
62 9,500,000 9,500,000 120 120 11/01/16 360 360 57,263 0.02000 Actual/360
62.01 4,825,000 4,825,000 120 120 11/01/16 360 360 0.02000
62.02 1,810,000 1,810,000 120 120 11/01/16 360 360 0.02000
62.03 1,525,000 1,525,000 120 120 11/01/16 360 360 0.02000
62.04 1,340,000 1,340,000 120 120 11/01/16 360 360 0.02000
63 9,200,000 9,172,276 60 56 07/01/11 360 356 58,817 0.02000 Actual/360
64 9,000,000 9,000,000 120 120 11/01/16 360 360 54,673 0.02000 30/360
65 8,915,000 8,915,000 120 118 09/01/16 360 360 53,107 0.02000 Actual/360
66 8,700,000 8,700,000 120 120 11/01/16 360 360 52,778 0.02000 Actual/360
67 8,500,000 8,500,000 120 113 04/01/16 360 360 50,362 0.02000 Actual/360
68 8,500,000 8,500,000 120 120 11/01/16 300 300 55,705 0.02000 Actual/360
69 8,200,000 8,200,000 120 120 11/01/16 0 0 40,399 0.02000 Actual/360
70 8,000,000 8,000,000 120 120 11/01/16 360 360 47,228 0.08500 Actual/360
71 8,000,000 8,000,000 120 120 11/01/16 360 360 48,712 0.09000 Actual/360
72 7,755,000 7,755,000 120 120 11/01/16 300 300 50,441 0.02000 Actual/360
73 7,428,000 7,428,000 120 119 10/01/16 360 360 44,391 0.09000 Actual/360
74 7,400,000 7,400,000 120 118 09/01/16 360 360 45,901 0.02000 Actual/360
75 7,400,000 7,400,000 120 120 11/01/16 360 360 45,083 0.07000 Actual/360
76 7,400,000 7,400,000 120 120 11/01/16 360 360 44,367 0.02000 Actual/360
77 7,100,000 7,100,000 120 119 10/01/16 360 360 42,477 0.02000 Actual/360
78 7,100,000 7,093,998 120 119 10/01/16 360 359 42,226 0.02000 Actual/360
79 6,700,000 6,700,000 120 120 11/01/16 0 0 33,009 0.02000 Actual/360
80 6,700,000 6,700,000 120 119 10/01/16 360 360 39,312 0.02000 Actual/360
81 6,700,000 6,691,622 180 179 10/01/21 300 299 43,595 0.08000 Actual/360
82 6,500,000 6,500,000 60 60 11/01/11 0 0 35,478 0.08000 Actual/360
83 6,500,000 6,500,000 120 120 11/01/16 300 300 42,598 0.02000 Actual/360
84 6,500,000 6,500,000 120 120 11/01/16 360 360 37,561 0.02000 Actual/360
85 6,500,000 6,488,632 120 118 09/01/16 360 358 39,810 0.02000 Actual/360
86 6,352,000 6,352,000 120 120 11/01/16 360 360 38,036 0.11000 Actual/360
87 6,200,000 6,200,000 120 120 11/01/16 360 360 36,894 0.02000 Actual/360
88 6,500,000 6,500,000 60 60 12/01/11 360 360 39,600 0.02000 Actual/360
89 6,000,000 6,000,000 120 118 09/01/16 0 0 30,011 0.02000 Actual/360
90 5,800,000 5,800,000 120 118 09/01/16 360 360 34,811 0.02000 Actual/360
91 5,775,000 5,765,014 120 118 09/01/16 360 358 35,558 0.02000 Actual/360
92 5,700,000 5,700,000 120 115 06/01/16 360 360 36,216 0.02000 Actual/360
93 5,650,000 5,650,000 120 120 11/01/16 360 360 33,947 0.06000 Actual/360
94 5,600,000 5,600,000 120 120 11/01/16 360 360 33,395 0.02000 Actual/360
95 5,520,000 5,520,000 120 118 09/01/16 360 360 33,380 0.02000 Actual/360
96 5,400,000 5,400,000 120 118 09/01/16 360 360 32,619 0.02000 Actual/360
97 5,200,000 5,193,270 120 118 09/01/16 420 418 29,128 0.02000 Actual/360
98 5,100,000 5,100,000 126 125 04/01/17 0 0 26,285 0.02000 Actual/360
99 5,100,000 5,095,739 120 119 10/01/16 360 359 30,479 0.02000 Actual/360
100 5,000,000 5,000,000 120 120 11/01/16 0 0 24,633 0.02000 Actual/360
101 5,000,000 5,000,000 120 119 10/01/16 360 360 29,846 0.02000 Actual/360
102 4,925,000 4,925,000 120 120 11/01/16 360 360 29,055 0.02000 Actual/360
103 4,850,000 4,850,000 84 84 11/01/13 360 360 29,485 0.07000 Actual/360
104 4,800,000 4,800,000 120 119 10/01/16 360 360 28,624 0.02000 Actual/360
105 4,700,000 4,700,000 120 120 11/01/16 360 360 28,939 0.05000 Actual/360
106 4,650,000 4,650,000 120 118 09/01/16 360 360 28,760 0.02000 Actual/360
107 4,650,000 4,650,000 120 114 05/01/16 360 360 28,299 0.02000 Actual/360
108 4,550,000 4,550,000 120 119 10/01/16 360 360 27,280 0.02000 Actual/360
109 4,500,000 4,500,000 120 117 08/01/16 360 360 27,503 0.02000 Actual/360
110 4,400,000 4,400,000 120 120 11/01/16 240 240 32,289 0.02000 Actual/360
111 4,400,000 4,400,000 60 60 11/01/11 360 360 25,343 0.02000 Actual/360
112 4,400,000 4,400,000 120 120 11/01/16 360 360 26,835 0.02000 Actual/360
113 4,365,000 4,365,000 120 120 11/01/16 360 360 26,311 0.02000 Actual/360
114 4,330,000 4,318,856 84 81 08/01/13 360 357 26,380 0.02000 Actual/360
115 4,313,000 4,309,560 120 119 10/01/16 360 359 26,262 0.07000 Actual/360
116 4,300,000 4,300,000 120 120 11/01/16 0 0 21,185 0.02000 Actual/360
117 4,151,000 4,125,027 120 113 04/01/16 360 353 25,155 0.02000 Actual/360
118 4,000,000 4,000,000 120 120 11/01/16 0 0 19,707 0.02000 Actual/360
119 4,000,000 4,000,000 120 120 11/01/16 360 360 24,395 0.02000 Actual/360
120 4,000,000 3,996,797 120 119 10/01/16 360 359 24,317 0.02000 Actual/360
121 4,000,000 3,938,768 120 105 08/01/15 360 345 23,140 0.02000 Actual/360
122 3,880,000 3,880,000 120 119 10/01/16 360 360 23,513 0.02000 Actual/360
123 3,800,000 3,796,767 120 119 10/01/16 360 359 22,539 0.02000 Actual/360
124 3,775,000 3,775,000 120 115 06/01/16 360 360 23,317 0.02000 Actual/360
125 3,750,000 3,745,684 120 119 10/01/16 300 299 25,360 0.09000 Actual/360
126 3,700,000 3,700,000 120 120 11/01/16 360 360 22,255 0.02000 Actual/360
127 3,520,000 3,513,662 120 118 09/01/16 360 358 21,265 0.02000 Actual/360
128 3,475,000 3,475,000 120 118 09/01/16 360 360 20,634 0.07000 Actual/360
129 3,475,000 3,460,094 120 115 06/01/16 360 355 21,351 0.02000 Actual/360
130 3,350,000 3,346,105 120 119 10/01/16 300 299 22,550 0.09000 Actual/360
131 3,210,000 3,210,000 120 120 11/01/16 360 360 19,081 0.02000 Actual/360
132 3,200,000 3,200,000 60 60 11/01/11 0 0 16,655 0.02000 Actual/360
133 3,100,000 3,100,000 120 120 11/01/16 360 360 19,452 0.02000 Actual/360
134 3,125,000 3,093,929 120 115 06/01/16 240 235 23,047 0.09000 Actual/360
135 3,000,000 3,000,000 120 119 10/01/16 360 360 18,368 0.11000 Actual/360
136 3,000,000 3,000,000 120 120 11/01/16 300 300 19,421 0.09000 Actual/360
137 3,000,000 3,000,000 120 119 10/01/16 360 360 18,335 0.11000 Actual/360
138 3,000,000 3,000,000 120 120 11/01/16 360 360 17,852 0.02000 Actual/360
139 2,900,000 2,894,830 120 118 09/01/16 360 358 17,602 0.07000 Actual/360
140 2,860,000 2,855,222 120 118 09/01/16 360 358 17,889 0.02000 Actual/360
141 2,800,000 2,800,000 120 119 10/01/16 360 360 16,787 0.02000 Actual/360
142 2,640,000 2,635,569 120 118 09/01/16 360 358 16,479 0.02000 Actual/360
143 2,600,000 2,600,000 120 119 10/01/16 360 360 15,588 0.11000 Actual/360
144 2,300,000 2,300,000 120 119 10/01/16 360 360 14,349 0.02000 Actual/360
145 2,020,000 2,020,000 120 112 03/01/16 360 360 11,981 0.02000 Actual/360
146 1,900,000 1,900,000 120 112 03/01/16 360 360 11,270 0.02000 Actual/360
147 1,610,000 1,610,000 60 60 11/01/11 360 360 9,467 0.02000 Actual/360
148 1,300,000 1,300,000 120 112 03/01/16 360 360 7,711 0.02000 Actual/360
149 1,160,000 1,160,000 120 112 03/01/16 360 360 6,880 0.02000 Actual/360
150 1,000,000 1,000,000 120 120 11/01/16 0 0 4,927 0.02000 Actual/360
151 1,000,000 999,210 120 119 10/01/16 360 359 6,112 0.07000 Actual/360
Originator/
ARD ARD Step Crossed Loan Letter of
Loan # (Y/N) Up (%) Title Type Loan Seller Guarantor Credit
------ ----- -------- ----------------- ------- ----------- ------------------------------- -----------
1 No Fee JPMCB The GFW Trust, The GFW II Trust No
2 No Fee JPMCB Centro Watt America REIT 16A, No
Inc.
2.01 No Fee JPMCB No
2.02 No Fee JPMCB No
2.03 No Fee JPMCB No
2.04 No Fee JPMCB No
2.05 No Fee JPMCB No
2.06 No Fee JPMCB No
2.07 No Fee JPMCB No
2.08 No Fee JPMCB No
2.09 No Fee JPMCB No
2.1 No Fee JPMCB No
2.11 No Fee JPMCB No
2.12 No Fee JPMCB No
2.13 No Fee JPMCB No
2.14 No Fee JPMCB No
3 No Fee CIBC Granite Companies LLC No
4 No Fee JPMCB CNL Financial Group, Inc. No
4.01 No Fee JPMCB No
4.02 No Fee JPMCB No
5 No Fee JPMCB Centro Watt America REIT 10, No
Inc.
6 No Fee JPMCB Behringer Harvard REIT I, Inc. No
7 No Fee CIBC Xxxxx Xxxxx No
7.01 Fee CIBC No
7.02 Fee CIBC No
7.03 Fee CIBC No
7.04 Fee CIBC No
7.05 Fee CIBC No
7.06 Fee CIBC No
7.07 Fee CIBC No
8 No Fee CIBC Columbia Sussex Corporation No
9 No Fee JPMCB Xxxxxxx Xxxxxxxxxxx 7,650,000.0
10 No Fee CIBC Xxxxxx Xxxxxxxx No
11 No Fee and Leasehold CIBC OCRE Beer Hill LLC, SBER No
Development Services LLC,
National East LLC, NB 3601
LLC, Xxxxxxx Headquarters LLC
11.01 Fee CIBC No
11.02 Fee CIBC No
11.03 Fee CIBC No
12 No Fee JPMCB W. Xxxx Xxxxxx No
13 No Fee JPMCB DCD America, Inc. No
14 No Leasehold CIBC Xxxxxxx X. Xxxxxxxxxx No
15 No Fee CIBC X. Xxxxxxxx Woodbury, O. No
Xxxxxxx Xxxxxxxx, Xxxxxxx X.
Xxxxx III, Xxxxx X. Xxxxxxxx,
Xxxx X. Xxxxxxxx, Xxx X.
Xxxxxxxx, Xxxxxxx X. Xxxxxxxx
16 No Fee CIBC Xxxxx Xxxxx No
17 No Leasehold JPMCB Xxxxx X. Xxxxx No
18 No Fee and Leasehold CIBC Xxxx X. Xxxxxxxx No
19 No Fee JPMCB Xxxxx X. Xxxxxxx, Xxxxxxx & No
Xxxx Xxxxxx, Xxxxxxx & Xxxxx
Xxxxxx, Xxxx Xxxxxxx, Xxxxx &
Xxxx Xxxxxxx, Xxxxx Xxxxx &
Xxxxxxx Xxxxxxx, Xxxxxxx
Xxxxxx & Xxxxxxx Xxxxx, Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxx
Xxxx, Xxxx & Xxxxx Xxxxxxx,
Xxxxx Xxxxxxx, Richard Sa
20 No Fee CIBC Xxxxxx Xxxxxx No
21 No Fee JPMCB 471 Culebra Investors, LP No
22 No Fee JPMCB Shady Grove Center, Xxxxxx No
Begelman, Xxxx Xxxxxxxx
23 No Fee CIBC Xxxxx Xxxxxxxxx Properties 36, No
LLC
24 No Fee CIBC Xxxxx Western, L.P. No
25 No Fee CIBC Hardam Xxxxx Xxxx No
25.01 Fee CIBC No
25.02 Fee CIBC No
25.03 Fee CIBC No
25.04 Fee CIBC No
25.05 Fee CIBC No
26 No Fee JPMCB Finlay Partners, LLC No
27 No Fee JPMCB Xxxxxxx Xxxxxxxxx, Xxxxxxxx No
Xxxxxxxxx
28 No Fee CIBC Xxxxxx Xxxxxx No
29 No Fee JPMCB Xxxxxxx Xxxxxx, Xxxxxx X. No
Xxxxxxx, Xxx X. Xxxxxxxx,
Xxxxx X. Xxxxxxxx, Xxxxxx X.
X. Xxxxxx, Xx., Xxxx
Xxxxxx-Xxxxx
30 No Fee CIBC Xxxxx Xxxxx No
30.01 Fee CIBC No
30.02 Fee CIBC No
30.03 Fee CIBC No
31 No Fee JPMCB Xxxxx Xxxxxxxx LLC No
32 No Fee JPMCB Behringer Harvard REIT I, Inc. No
33 No Fee CIBC Xxxxxx Xxxxxx No
34 No Fee JPMCB XX XX - Sunnyside, LLC No
35 No Fee CIBC HGGP Capital II, LLC No
36 No Fee CIBC Xxxxx Xxxxxxxxx Properties 36, No
LLC
37 No Fee CIBC Xxxx Xxxxxx, Xxxxxx Xxxxxx No
37.01 Fee CIBC No
37.02 Fee CIBC No
37.03 Fee CIBC No
37.04 Fee CIBC No
37.05 Fee CIBC No
37.06 Fee CIBC No
37.07 Fee CIBC No
37.08 Fee CIBC No
37.09 Fee CIBC No
37.1 Fee CIBC No
37.11 Fee CIBC No
37.12 Fee CIBC No
37.13 Fee CIBC No
37.14 Fee CIBC No
38 No Fee CIBC Xxxxxxx X. Xxxxxxxxx, Xxxxx X. No
Xxxxx
39 No Fee JPMCB Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxxx No
40 No Fee CIBC Xxxxx X. Xxxxx No
41 No Fee CIBC Xxxxxx Xxxx No
42 No Fee and Leasehold JPMCB Xxxxx Xxxxxx 250,000.0
43 No Fee JPMCB Xxxxxxx X. Xxxxxx, Xxxxxx X. No
Cherette
44 No Fee CIBC Xxxxxxxxxxxx X. Xxxxxxxx, No
Xxxxxxx X. Xxxxx, Xxxxxxxxxxx
X. Xxxxxxx
44.01 Fee CIBC No
44.02 Fee CIBC No
45 No Fee JPMCB Flagship Investment I LLC, No
Xxxxxx X. Xxxxxx III
46 No Fee CIBC Xxxxx Xxxxxx, Xxxxx X. Xxxxxx No
47 No Fee CIBC Xxxxxxx X. Xxxxxxxxx, Xxxxx X. No
Xxxxx
48 No Fee CIBC Xxxxxxxxxx, Sandler, Brochin, No
Xxxx & Xxxxxx
49 No Fee CIBC Xxxxxxx X. Xxxxxxxxx, Xxxxx X. No
Xxxxx
50 No Fee CIBC Xxxx X. Xxxxxxx, Xxxx X. Fair No
51 No Fee JPMCB Xxx X. Xxxxxxxx, Xxxxxxx X. No
Xxxxx
52 No Fee JPMCB Xxxxx Xxxxxxx, Xxxxxx X. Xxxxx No
53 No Fee CIBC Xxxx X. Xxxxxx No
54 No Fee CIBC Xxxxx Western, L.P. 500,000.0
55 No Fee CIBC Northland Fund II, L.P. No
56 No Fee JPMCB Xxx X. Xxxxxxxx, Xxxxxxx X. No
Xxxxx
57 No Fee JPMCB Xxxx X. Xxxxx, D. Xxxxxxx Xxxxx No
58 No Fee JPMCB Xxxxxxxx Xxxxxxx No
59 No Fee CIBC Il Xxxx Xxxx No
60 No Fee CIBC Xxxxx Western, L.P. No
61 No Fee CIBC Xxxxx Xxxxxxxxx Properties 36, No
LLC
62 No Fee CIBC Xxxxx Xxxxxx No
62.01 Fee CIBC No
62.02 Fee CIBC No
62.03 Fee CIBC No
62.04 Fee CIBC No
63 No Fee CIBC Xxxxxxxx Xxxxxx No
64 No Fee JPMCB Xxxxxx X. Xxxxx, Xxxxxxx No
Huberman
65 No Fee CIBC Xxxxxxx X. Xxxxxxxxxx No
66 No Fee JPMCB Xxxx X. Xxxxxxxx No
67 No Fee JPMCB Xxxxxxx Xxxxxxxxxxx No
68 No Fee CIBC Xxxxxx X. Xxxxx, Xxxxxx X. No
Xxxxx
69 No Fee JPMCB Xxxxxxx Xxxxxxxxx, Xxxxxxxx No
Xxxxxxxxx
70 No Fee JPMCB Xxxxxxx X. Xxxxx No
71 No Fee JPMCB Xxxxxxx Xxxxxx, Xxx Xxxxxxx, No
Xxxx X. Xxxxxx, XX, Xxxx X.
Xxxxx, Xx.
72 No Fee CIBC Xxxxx X. Xxxx, Tuck Tsai No
73 No Fee JPMCB Xxxxx X. Xxxxxxxx, Xxxxxxx X. No
Xxxxxxxx, Xxxxx Haut
74 No Fee CIBC Xxxxxx X. Xxxxxxx, Xxxxxxxx X. No
Xxxxxxx, Xxxxxx X. Xxxxxxx
75 No Fee CIBC Xxxxxxx X. Xxxxxxxxxxxx, Xxxxx No
X. Xxxxx, Xxxxxx X. Xxxxxx,
Xxxx X. Xxxxxxx
76 No Fee CIBC Xxxxxxxx X. Xxxxxxxx, Xxxx No
Xxxxx Xxxxxxxx, Xxxxx Xxxxxxx
77 No Fee CIBC Xxxxxxx X. Xxxxxxxx No
78 No Fee JPMCB Xxxx Xxxxxxxxxx No
79 No Fee JPMCB Xxxxxxx Xxxxxxxxx, Xxxxxxxx No
Xxxxxxxxx
80 No Fee JPMCB Xxxxxxx X. Xxxxx No
81 No Fee JPMCB Monocacy Business Center, LLC No
82 No Fee JPMCB N. Xxxxxxx Xxxxxxxx No
83 No Fee CIBC Xxxxxx X. Xxxxx, Xxxxxx X. No
Xxxxx
84 No Fee CIBC Xxxxxx Xxxxxxxx No
85 No Fee CIBC Xxxxxx X. Freshman No
86 No Fee JPMCB Xxxxx X. Xxxxxxxxxx No
87 No Fee CIBC Xxxxx Xxxxx No
88 No Fee JPMCB Xxxx Viet Xxxx Xx No
89 No Fee CIBC Xxxxxxx Xxxx No
90 No Fee CIBC Abraham Leser No
91 No Fee CIBC Blake McGehee, Brandon No
McGehee, Molly M. Quinn
92 No Fee JPMCB Mary LoBianco Fetch, Dennis I. No
Fetch
93 No Fee CIBC Peter O'Connor, Peter Murphy, No
Jonathan Stott
94 No Fee CIBC Thomas Hong, Robert Hong No
95 No Fee JPMCB Samuel Friedler 100,000.0
96 No Fee CIBC Riverside Business Center, LLC No
97 No Fee CIBC Howard Sumerlin No
98 No Fee CIBC Mujeebuddin Ahmed, Mirajuddin No
Ahmed
99 No Fee JPMCB Robert Eissenberg, Baruch No
Harrar
100 No Fee JPMCB Michael Edelstein, Florence No
Edelstein
101 No Fee JPMCB Michael B. Gimbert, The No
Shoppes at Dunkirk LLC,
Country Plaza LLC
102 No Fee CIBC Gregory M. Cervenka No
103 No Fee CIBC Joseph T. Posh and Joseph C. No
Posh
104 No Fee CIBC Clark Minker No
105 No Fee JPMCB Matthew Jonna, Edward Jonna 200,000.0
and Maury Feuerman
106 No Fee JPMCB Roland Fleck, Ernest Schabauer No
107 No Fee CIBC James E. Wolf No
108 No Fee CIBC Herbert C. Moore No
109 No Fee CIBC Hayward Pressman No
110 No Fee CIBC Christopher M. Whitt No
111 No Fee CIBC Rubin Pachulski Properties 36, No
LLC
112 No Fee CIBC Gary P. Krupnick, Nicholas H. 500,000.0
Racanelli, Michael V.
Racanelli, The RMR 1995
Irrevocable Trust, Martin J.
Racanelli, Jr., Martin J.
Racanelli, Sr.
113 No Leasehold CIBC John R. Reese, Richard Fownes No
114 No Fee CIBC Anthony Stieren, Bridie J. No
Stieren
115 No Fee JPMCB Frank S. DeFilippo, Nicholas No
Corcokios
116 No Fee JPMCB Michael Edelstein, Florence No
Edelstein
117 No Fee CIBC Michael Fischer No
118 No Fee JPMCB Michael Edelstein, Florence No
Edelstein
119 No Fee CIBC Gary P. Krupnick, Nicholas H. No
Racanelli, Michael V.
Racanelli, The RMR 1995
Irrevocable Trust, Martin J.
Racanelli, Jr., Martin J.
Racanelli, Sr.
120 No Fee CIBC Abdelrahman Ayyad No
121 No Fee JPMCB Robert D. Lehman, Mildred No
Lehman
122 No Fee JPMCB Debbie Tessler No
123 No Fee CIBC Gregory Walters, Thomas No
Sutton, Vicki D. Sutton,
Charles Lyddane
124 No Fee JPMCB Gregory F. Perlman, GH No
Capital, LLC
125 No Fee JPMCB Dhumesh Patel, Sandip R. Patel No
and Madhu M. Patel
126 No Fee CIBC Jona Goldrich, Sol Kest, No
Warren L. Breslow
127 No Fee JPMCB William F. Kingsmill, III No
128 No Fee JPMCB Richard Aguilar No
129 No Fee JPMCB David A. Buich, Karen Louise No
Buich, Gerald Gregory Hall,
Sandra Lois Hall
130 No Fee JPMCB Dhumesh Patel, Madhu M. Patel No
131 No Fee CIBC Mansoor Emral Shaool, Curtis No
Marts
132 No Fee CIBC Donald A. Levine No
133 No Fee JPMCB David M. Currey, David and Sue No
Currey Irrevocable Children's
Trust Under Trust Agreement
Dated December 1, 1997
134 No Fee JPMCB Rajesh Aggarwal, Reita N. No
Aggarwal
135 No Fee JPMCB Herbert R. Coleman, III No
136 No Fee JPMCB Ghanshyam Patel, M.D. No
137 No Fee JPMCB Debra J. Pyzyk No
138 No Fee CIBC John J. Mikk, Elaine H. Mikk No
139 No Fee JPMCB Paul Bergman, Issac Michael No
Bergman
140 No Fee JPMCB Dharampal S. Dhillon, Balbir No
K. Dhillon
141 No Fee CIBC Richard W. Moore No
142 No Fee JPMCB Abraham Retek No
143 No Fee JPMCB Michael P. Ziegler No
144 No Fee JPMCB James E. McKellar 130,000.0
145 No Fee JPMCB Gregory F. Perlman, GH No
Capital, LLC
146 No Fee JPMCB Gregory F. Perlman, GH No
Capital, LLC
147 No Fee CIBC Rubin Pachulski Properties 36, No
LLC
148 No Fee JPMCB Gregory F. Perlman, GH Capital No
LLC
149 No Fee JPMCB Gregory F. Perlman, GH Capital No
LLC
150 No Fee JPMCB Michael Edelstein, Florence No
Edelstein
151 No Fee JPMCB Nicholas Corcokios No
UPFRONT ESCROW
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Upfront CapEx Upfront Eng. Upfront Envir. Upfront TI/LC Upfront RE Tax Upfront Ins. Upfront Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve Reserve
------ ------------- ------------ -------------- ------------- -------------- ------------ -------------
1 0.00 0.00 0.00 5,379,550.00 834,729.83 0.00 14,200,000.00
2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
2.1
2.11
2.12
2.13
2.14
3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
4 0.00 0.00 0.00 5,227,156.00 377,659.00 0.00 447,976.00
4.01
4.02
5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
6 0.00 0.00 0.00 497,912.00 0.00 0.00 0.00
7 37,468.00 0.00 0.00 0.00 696,477.38 435,392.54 1,350,000.00
7.01
7.02
7.03
7.04
7.05
7.06
7.07
8 60,937.00 0.00 0.00 0.00 266,666.67 42,897.00 0.00
9 0.00 0.00 0.00 0.00 0.00 0.00 0.00
10 2,012.00 0.00 0.00 21,667.00 287,467.80 19,255.00 0.00
11 0.00 0.00 0.00 2,383,660.00 114,629.01 82,437.50 728,972.00
11.01
11.02
11.03
12 0.00 504,062.00 0.00 0.00 672,812.00 92,757.29 0.00
13 0.00 6,250.00 0.00 2,005,459.00 354,202.48 56,659.16 0.00
14 50,000.00 0.00 0.00 0.00 63,455.17 70,341.75 2,000,000.00
15 0.00 0.00 0.00 0.00 228,824.75 26,903.00 0.00
16 2,611.50 0.00 0.00 0.00 33,327.08 35,746.75 8,375,000.00
17 0.00 0.00 0.00 1,000,000.00 14,638.73 3,028.08 884,850.00
18 4,633.84 207,961.42 0.00 16,667.00 76,951.25 35,484.17 200,000.00
19 0.00 0.00 0.00 2,500,000.00 71,182.41 3,929.33 0.00
20 1,630,000.00 0.00 0.00 0.00 0.00 67,464.34 0.00
21 0.00 0.00 0.00 0.00 457,178.37 22,110.88 0.00
22 0.00 0.00 0.00 50,000.00 70,724.17 12,424.17 0.00
23 837.33 0.00 0.00 1,220,689.98 48,000.00 0.00 347,409.00
24 138,050.00 61,312.50 0.00 0.00 143,799.14 41,372.62 0.00
25 75,000.00 123,188.00 0.00 358,862.00 46,836.00 15,208.50 0.00
25.01
25.02
25.03
25.04
25.05
26 500,000.00 15,000.00 0.00 0.00 310,048.06 52,571.33 119,000.00
27 0.00 0.00 0.00 0.00 0.00 0.00 0.00
28 866.63 0.00 108,900.00 1,041.25 116,075.79 18,653.92 0.00
29 0.00 38,500.00 0.00 0.00 152,112.55 2,267.92 132,100.00
30 2,785.27 0.00 0.00 1,000.00 101,276.08 31,568.33 0.00
30.01
30.02
30.03
31 0.00 0.00 0.00 0.00 0.00 0.00 0.00
32 0.00 405,000.00 0.00 152,802.15 0.00 0.00 0.00
33 8,333.34 25,800.00 0.00 0.00 113,765.76 14,861.00 0.00
34 0.00 0.00 0.00 0.00 67,868.77 6,221.50 0.00
35 206,820.00 24,375.00 15,400.00 0.00 425,271.06 55,755.67 136,000.00
36 729.00 124,763.00 0.00 140,274.34 199,500.00 0.00 121,210.67
37 2,061.00 21,750.00 0.00 320,000.00 205,006.65 7,137.50 0.00
37.01
37.02
37.03
37.04
37.05
37.06
37.07
37.08
37.09
37.1
37.11
37.12
37.13
37.14
38 2,017.73 10,862.50 0.00 0.00 42,995.29 9,348.00 0.00
39 0.00 7,625.00 0.00 500,000.00 91,811.19 0.00 0.00
40 0.00 0.00 0.00 336,248.00 66,548.12 17,506.50 96,050.00
41 4,400.00 0.00 0.00 0.00 202,880.28 14,920.25 0.00
42 0.00 62,500.00 0.00 0.00 24,044.58 14,500.00 0.00
43 0.00 0.00 0.00 0.00 49,356.23 7,916.67 0.00
44 12,428.00 566,104.00 0.00 0.00 68,000.00 5,740.50 0.00
44.01
44.02
45 0.00 0.00 0.00 0.00 1,976.13 8,555.00 0.00
46 2,179.00 0.00 0.00 160,839.00 69,352.14 65,054.25 0.00
47 1,750.00 10,625.00 0.00 0.00 51,825.13 8,165.00 0.00
48 116,346.67 0.00 0.00 0.00 96,438.33 25,534.82 0.00
49 1,661.22 21,250.00 0.00 0.00 53,579.04 7,720.00 0.00
50 954.40 0.00 0.00 813,695.26 283,700.00 8,093.75 775,238.00
51 0.00 0.00 0.00 0.00 215,491.76 51,580.83 0.00
52 12,495.00 0.00 0.00 150,000.00 74,654.31 17,564.00 0.00
53 3,916.67 0.00 0.00 0.00 19,447.66 13,088.67 0.00
54 95,198.00 1,875.00 0.00 0.00 20,070.34 17,145.27 1,411,050.00
55 0.00 0.00 0.00 0.00 42,552.88 2,475.21 0.00
56 0.00 0.00 0.00 0.00 169,868.64 42,346.33 0.00
57 0.00 0.00 0.00 0.00 14,888.41 21,061.25 0.00
58 0.00 0.00 140,000.00 0.00 137,353.69 2,055.08 0.00
59 2,102.67 0.00 0.00 3,333.33 84,652.92 17,066.00 0.00
60 0.00 18,660.00 0.00 0.00 38,007.21 20,665.98 0.00
61 0.00 0.00 0.00 0.00 33,425.50 0.00 300,000.00
62 2,000.00 20,688.00 0.00 0.00 141,568.00 22,874.45 0.00
62.01
62.02
62.03
62.04
63 0.00 0.00 0.00 0.00 0.00 0.00 0.00
64 0.00 0.00 0.00 0.00 41,171.70 2,205.83 0.00
65 0.00 0.00 0.00 0.00 120,583.50 26,619.25 570,994.00
66 0.00 35,125.00 0.00 0.00 0.00 10,575.00 0.00
67 0.00 1,875.00 0.00 0.00 78,903.75 8,110.25 593,890.60
68 4,165.46 0.00 0.00 0.00 17,880.00 129,053.17 0.00
69 0.00 0.00 0.00 0.00 0.00 0.00 0.00
70 0.00 0.00 0.00 149,520.00 24,766.04 0.00 0.00
71 0.00 0.00 0.00 0.00 11,372.17 11,145.00 0.00
72 1,015.15 0.00 0.00 54,166.67 174,079.10 10,603.10 135,000.00
73 0.00 0.00 0.00 249,000.00 29,139.25 30,889.17 0.00
74 524.35 0.00 0.00 0.00 39,289.25 8,788.33 0.00
75 547.00 0.00 0.00 0.00 15,522.07 6,297.67 0.00
76 1,208.33 0.00 0.00 2,996.67 8,777.20 4,611.33 86,120.00
77 1,120.39 5,625.00 0.00 0.00 38,428.20 14,008.67 600,000.00
78 0.00 0.00 0.00 0.00 163,125.75 5,049.33 0.00
79 0.00 0.00 0.00 0.00 0.00 0.00 0.00
80 0.00 0.00 0.00 0.00 6,508.17 11,666.67 0.00
81 0.00 0.00 0.00 0.00 0.00 0.00 0.00
82 0.00 0.00 6,000.00 200,000.00 0.00 0.00 0.00
83 5,212.82 0.00 0.00 0.00 8,192.62 4,726.00 0.00
84 232.92 0.00 0.00 1,274.75 7,845.66 6,759.00 460,000.00
85 1,877.33 0.00 0.00 41,334.30 43,359.75 13,136.51 100,905.00
86 0.00 0.00 0.00 0.00 0.00 8,306.08 500.00
87 5,708.33 0.00 0.00 0.00 154,384.00 109,341.92 0.00
88 0.00 0.00 10,000.00 0.00 24,645.08 10,055.33 1,050,000.00
89 0.00 14,531.00 0.00 0.00 0.00 0.00 0.00
90 1,039.42 0.00 0.00 67,563.17 39,668.59 2,390.04 0.00
91 420.33 0.00 0.00 0.00 36,892.48 6,450.25 0.00
92 220,000.00 0.00 0.00 0.00 63,141.33 9,128.52 0.00
93 2,561.13 31,125.00 15,000.00 5,624.60 24,361.47 6,499.17 0.00
94 40,667.00 92,906.00 277,500.00 83,644.00 26,509.92 11,937.50 0.00
95 157.00 52,225.00 0.00 0.00 27,492.84 2,056.00 0.00
96 158,317.00 0.00 0.00 5,423.00 6,395.79 7,006.67 0.00
97 484.50 0.00 0.00 0.00 18,900.67 6,160.00 500,000.00
98 0.00 0.00 0.00 0.00 15,017.80 16,430.25 0.00
99 0.00 0.00 0.00 0.00 13,022.36 2,044.58 0.00
100 0.00 0.00 0.00 0.00 0.00 0.00 0.00
101 0.00 0.00 0.00 0.00 8,113.53 8,907.00 0.00
102 444.00 0.00 0.00 110,550.00 3,648.85 2,183.00 323,950.00
103 281.25 0.00 0.00 1,250.00 40,872.05 3,098.00 22,500.00
104 992.42 0.00 0.00 152,500.00 97,876.17 3,717.75 0.00
105 0.00 0.00 0.00 0.00 10,244.16 0.00 0.00
106 0.00 0.00 0.00 3,957.00 3,125.00 359.33 17,168.40
107 2,604.00 0.00 0.00 0.00 6,817.50 5,762.75 0.00
108 2,116.00 13,125.00 0.00 0.00 28,130.85 25,707.00 100,000.00
109 9,960.00 0.00 0.00 0.00 43,244.00 2,136.67 0.00
110 2,500.00 0.00 0.00 0.00 13,782.00 6,183.50 0.00
111 0.00 0.00 0.00 0.00 0.00 0.00 0.00
112 363.00 0.00 0.00 240,000.00 0.00 0.00 0.00
113 56,227.67 3,125.00 0.00 45,000.00 28,414.50 3,219.25 0.00
114 733.33 0.00 0.00 0.00 20,859.26 1,354.10 0.00
115 0.00 0.00 0.00 50,000.00 0.00 6,453.00 238,000.00
116 0.00 0.00 0.00 0.00 0.00 0.00 0.00
117 176,508.00 43,000.00 0.00 3,619.00 49,870.26 3,160.50 5,000.00
118 0.00 12,000.00 0.00 0.00 0.00 0.00 0.00
119 403.00 0.00 0.00 120,000.00 0.00 0.00 0.00
120 291.25 0.00 0.00 0.00 6,718.50 2,724.00 0.00
121 0.00 0.00 0.00 0.00 9,615.16 17,922.45 0.00
122 0.00 3,750.00 0.00 0.00 104,910.00 2,613.00 0.00
123 292.15 0.00 0.00 1,250.00 8,269.90 1,988.25 0.00
124 0.00 5,250.00 0.00 0.00 27,665.21 36,682.33 0.00
125 0.00 50,000.00 0.00 0.00 6,450.57 21,055.87 0.00
126 699.83 15,937.50 0.00 2,083.33 0.00 0.00 0.00
127 0.00 0.00 0.00 48,967.92 21,270.56 7,458.33 0.00
128 0.00 41,244.00 0.00 0.00 65,760.83 15,470.40 0.00
129 0.00 0.00 0.00 0.00 8,039.28 1,350.16 0.00
130 0.00 9,286.00 0.00 0.00 4,700.21 6,267.49 0.00
131 214.92 4,500.00 0.00 150,000.00 13,033.33 2,830.09 0.00
132 333.33 0.00 0.00 203,333.33 17,308.50 12,020.75 0.00
133 0.00 0.00 0.00 0.00 0.00 3,272.50 177,985.02
134 0.00 0.00 0.00 0.00 37,897.96 20,504.25 0.00
135 0.00 0.00 0.00 0.00 4,760.67 3,600.00 0.00
136 0.00 0.00 0.00 0.00 2,244.22 15,197.23 0.00
137 0.00 0.00 0.00 0.00 34,073.42 16,619.75 0.00
138 296.00 9,750.00 0.00 1,083.00 9,468.76 1,883.33 0.00
139 0.00 0.00 403,500.00 0.00 13,635.50 9,404.00 0.00
140 0.00 0.00 0.00 16,000.00 36,666.00 1,346.50 25,625.00
141 1,890.00 0.00 8,750.00 0.00 26,627.80 16,101.25 0.00
142 0.00 0.00 0.00 50,000.00 2,235.78 2,892.75 0.00
143 0.00 0.00 0.00 0.00 0.00 5,733.00 0.00
144 0.00 0.00 0.00 0.00 3,928.98 5,679.44 61,296.00
145 0.00 26,250.00 0.00 0.00 8,704.44 12,585.83 1,750.00
146 0.00 31,875.00 0.00 0.00 4,671.38 8,006.17 1,750.00
147 76.30 0.00 0.00 489.59 30,169.75 0.00 0.00
148 0.00 1,375.00 0.00 0.00 4,913.51 6,882.33 1,750.00
149 0.00 14,000.00 0.00 0.00 5,692.22 6,874.08 1,750.00
150 0.00 0.00 0.00 0.00 0.00 0.00 0.00
151 0.00 0.00 0.00 0.00 0.00 2,729.75 0.00
MONTHLY ESCROW
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Monthly Monthly Monthly Monthly Monthly
Capex Envir. TI/LC Monthly RE Ins. Other Grace Lockbox Defeasance
Loan # Reserve Reserve Reserve Tax Reserve Reserve Reserve Period In-place Property Type Permitted
------ -------- ------- -------- ----------- -------- ------- ------ -------- --------------------- ----------
1 9900.00 0.00 0.00 417364.92 0.00 0.00 10 Yes Office Yes
2 0.00 0.00 0.00 0.00 0.00 0.00 7 Yes Retail Yes
2.01 7 Retail
2.02 7 Retail
2.03 7 Retail
2.04 7 Retail
2.05 7 Retail
2.06 7 Retail
2.07 7 Retail
2.08 7 Retail
2.09 7 Retail
2.1 7 Retail
2.11 7 Retail
2.12 7 Retail
2.13 7 Retail
2.14 7 Retail
3 0.00 0.00 0.00 0.00 0.00 0.00 7 No Hotel Yes
4 6209.00 0.00 25871.00 188830.00 0.00 0.00 7 Yes Office Yes
4.01 7 Yes Office
4.02 7 Yes Office
5 0.00 0.00 0.00 0.00 0.00 0.00 7 Yes Retail Yes
6 0.00 0.00 0.00 0.00 0.00 0.00 0 Yes Office Yes
7 37468.00 0.00 0.00 77386.38 45299.65 0.00 7 No Multifamily Yes
7.01 7 Multifamily
7.02 7 Multifamily
7.03 7 Multifamily
7.04 7 Multifamily
7.05 7 Multifamily
7.06 7 Multifamily
7.07 7 Multifamily
8 60937.00 0.00 0.00 66666.67 0.00 0.00 7 No Hotel Yes
9 0.00 0.00 0.00 0.00 0.00 0.00 7 No Retail Yes
10 2012.00 0.00 21667.00 90721.11 6648.33 0.00 7 No Office Yes
11 0.00 0.00 0.00 8187.79 8243.75 0.00 7 Yes Various Yes
11.01 7 Office
11.02 7 Mixed Use
11.03 7 Office
12 4632.25 0.00 0.00 64077.33 7420.58 0.00 5 No Retail Yes
13 1675.53 0.00 11083.34 88550.62 4358.40 0.00 10 No Office Yes
14 3037.88 0.00 5842.08 31727.58 13805.25 0.00 5 No Retail Yes
15 0.00 0.00 0.00 32689.25 4483.83 0.00 7 No Retail Yes
16 2611.50 0.00 0.00 16663.54 4890.42 0.00 7 No Retail Yes
17 0.00 0.00 0.00 14638.73 3028.08 0.00 7 Yes Industrial No
18 12595.26 0.00 16667.00 15390.25 5069.17 0.00 7 Yes Retail Yes
19 1114.17 0.00 0.00 35591.21 1964.67 0.00 10 No Office Yes
20 7066.67 0.00 0.00 62946.73 9637.76 0.00 7 No Multifamily Yes
21 1754.42 0.00 0.00 41561.67 2010.08 0.00 7 No Retail No
22 1375.50 0.00 4166.67 17681.23 2484.83 0.00 7 No Mixed Use Yes
23 837.33 0.00 1666.67 16000.00 0.00 0.00 7 Yes Retail Yes
24 2236.58 0.00 5135.50 13072.65 8097.43 0.00 7 No Retail Yes
25 0.00 0.00 0.00 33681.00 5069.50 0.00 7 No Retail Yes
25.01 7 Retail
25.02 7 Retail
25.03 7 Retail
25.04 7 Retail
25.05 7 Retail
26 6333.33 0.00 0.00 28186.19 6571.42 0.00 10 No Multifamily Yes
27 0.00 0.00 0.00 0.00 0.00 0.00 7 No Multifamily Yes
28 866.63 0.00 1041.25 29018.95 2010.73 0.00 7 No Retail Yes
29 2437.00 0.00 5000.00 38028.14 2267.92 0.00 7 No Retail Yes
30 2785.27 0.00 1000.00 12659.51 3825.19 0.00 7 No Various Yes
30.01 7 Multifamily
30.02 7 Retail
30.03 7 Retail
31 0.00 0.00 0.00 0.00 0.00 0.00 7 Yes Office Yes
32 0.00 0.00 0.00 0.00 0.00 0.00 0 No Office Yes
33 4166.67 0.00 0.00 18960.96 3715.25 0.00 7 Yes Office Yes
34 0.00 0.00 4166.67 16967.19 2073.83 0.00 7 No Industrial Yes
35 6166.67 0.00 0.00 33843.57 6115.58 0.00 7 No Multifamily Yes
36 729.00 0.00 2916.67 22166.67 0.00 1666.67 7 Yes Retail Yes
37 2061.00 0.00 0.00 28604.98 2379.17 0.00 7 Yes Various Yes
37.01 7 Retail
37.02 7 Office
37.03 7 Office
37.04 7 Office
37.05 7 Office
37.06 7 Office
37.07 7 Office
37.08 7 Office
37.09 7 Office
37.1 7 Office
37.11 7 Office
37.12 7 Office
37.13 7 Office
37.14 7 Office
38 2017.73 0.00 0.00 0.00 0.00 0.00 7 No Office Yes
39 1702.75 0.00 8300.00 30603.73 1668.50 0.00 7 No Office Yes
40 735.00 0.00 0.00 11091.36 1591.50 0.00 7 No Office Yes
41 4400.00 0.00 0.00 28982.90 4973.42 0.00 7 No Multifamily Yes
42 0.00 0.00 8156.00 24044.58 2416.67 0.00 7 No Retail Yes
43 3310.29 0.00 0.00 24678.12 3958.33 0.00 10 No Multifamily Yes
44 12428.00 0.00 0.00 5666.67 1913.50 0.00 7 Yes Hotel Yes
44.01 7 Hotel
44.02 7 Hotel
45 626.08 0.00 2000.00 1976.13 2138.75 0.00 7 No Retail Yes
46 2179.00 0.00 10839.00 13870.43 7228.25 0.00 7 No Office Yes
47 1750.00 0.00 0.00 0.00 0.00 0.00 7 No Office Yes
48 1346.67 0.00 0.00 24109.58 3191.85 0.00 7 No Office Yes
49 1661.22 0.00 0.00 0.00 0.00 0.00 7 No Office Yes
50 954.40 0.00 5068.00 23641.67 1618.75 0.00 7 No Retail Yes
51 4952.00 0.00 0.00 17957.65 4689.17 0.00 7 No Multifamily Yes
52 879.25 0.00 0.00 12,442,39 2195.50 0.00 7 No Office Yes
53 3916.67 0.00 0.00 6482.55 3272.17 0.00 7 No Multifamily Yes
54 2424.03 0.00 5461.25 10035.17 1714.53 0.00 15 No Retail Yes
55 0.00 0.00 0.00 10638.22 412.53 0.00 7 No Retail Yes
56 4338.00 0.00 0.00 14155.72 3849.67 0.00 7 No Multifamily Yes
57 5460.25 0.00 0.00 4962.80 3008.75 0.00 7 No Multifamily Yes
58 2109.03 0.00 8333.33 15261.52 2055.08 0.00 7 No Retail Yes
59 2102.67 0.00 3333.33 16930.58 4266.50 0.00 7 No Retail Yes
60 2044.33 0.00 1318.75 8864.29 1878.73 0.00 7 No Retail Yes
61 1560.67 0.00 4610.00 5570.92 0.00 0.00 7 No Retail Yes
62 2000.00 0.00 0.00 11797.33 2541.61 0.00 7 No Industrial Yes
62.01 7 Industrial
62.02 7 Industrial
62.03 7 Industrial
62.04 7 Industrial
63 0.00 0.00 0.00 0.00 0.00 0.00 15 No Retail Yes
64 520.24 0.00 3468.33 8234.34 1102.91 0.00 7 No Mixed Use Yes
65 982.25 0.00 5370.00 13398.17 3802.75 0.00 5 No Retail Yes
66 5287.50 0.00 0.00 18876.59 3525.00 0.00 7 No Multifamily Yes
67 2403.13 0.00 4957.66 15780.75 2703.42 0.00 7 Yes Retail Yes
68 4165.46 0.00 0.00 9218.08 2980.00 0.00 7 No Hotel Yes
69 0.00 0.00 0.00 0.00 0.00 0.00 7 No Multifamily Yes
70 0.00 0.00 0.00 8255.35 0.00 0.00 7 No Office Yes
71 2300.00 0.00 0.00 5686.08 928.75 0.00 7 No Multifamily Yes
72 1015.15 0.00 4166.67 14506.59 3534.37 0.00 7 No Retail Yes
73 528.75 0.00 2083.33 14569.63 3088.92 0.00 7 No Retail Yes
74 524.35 0.00 0.00 13096.42 878.83 0.00 7 No Office Yes
75 547.00 0.00 0.00 3880.52 1574.42 0.00 7 No Office Yes
76 1208.33 0.00 2996.67 8777.20 1152.83 0.00 7 No Retail Yes
77 1120.39 0.00 0.00 12809.40 2055.17 0.00 7 No Retail Yes
78 761.92 0.00 0.00 12370.08 631.17 0.00 7 No Self-Storage Yes
79 0.00 0.00 0.00 0.00 0.00 0.00 7 No Multifamily Yes
80 0.00 0.00 0.00 6508.17 1666.67 0.00 7 No Multifamily Yes
81 0.00 0.00 0.00 0.00 0.00 0.00 7 No Industrial No
82 0.00 0.00 0.00 0.00 0.00 0.00 7 No Industrial Yes
83 5212.82 0.00 0.00 4096.31 1575.33 0.00 7 No Hotel Yes
84 232.92 0.00 1274.50 1569.13 1126.50 0.00 7 No Office Yes
85 1877.33 0.00 0.00 6194.25 2189.42 0.00 7 No Retail Yes
86 4727.75 0.00 0.00 10178.83 4153.04 0.00 7 No Multifamily Yes
87 5708.33 0.00 0.00 12865.33 13667.74 0.00 7 No Multifamily Yes
88 544.85 0.00 4500.00 4929.01 1256.92 0.00 7 No Retail Yes
89 0.00 0.00 0.00 0.00 0.00 0.00 7 No Retail Yes
90 1039.42 0.00 5197.17 8174.88 796.68 0.00 7 No Office Yes
91 420.33 0.00 0.00 3353.86 2150.08 0.00 7 No Retail Yes
92 4041.67 0.00 0.00 7892.67 3042.50 0.00 7 No Multifamily Yes
93 2561.13 0.00 5624.60 12180.73 3249.58 0.00 7 No Industrial Yes
94 667.00 0.00 3644.00 13254.96 2387.50 0.00 7 No Office Yes
95 157.00 0.00 1389.00 6873.21 1028.00 0.00 7 No Retail Yes
96 817.00 0.00 5423.00 3197.90 875.83 0.00 7 No Industrial Yes
97 484.50 0.00 0.00 2362.58 513.33 0.00 7 No Manufactured Housing Yes
98 875.00 0.00 0.00 3754.45 1825.58 0.00 7 No Multifamily Yes
99 0.00 0.00 0.00 0.00 0.00 0.00 7 Yes Retail Yes
100 0.00 0.00 0.00 0.00 0.00 0.00 7 No Multifamily Yes
101 0.00 0.00 833.33 2704.51 1484.50 0.00 7 No Retail Yes
102 444.00 0.00 3750.00 3648.85 727.67 0.00 7 No Retail Yes
103 281.25 0.00 1250.00 5109.01 387.25 0.00 7 No Retail Yes
104 992.42 0.00 2500.00 8897.83 1239.25 0.00 7 No Office Yes
105 0.00 0.00 2100.00 3414.72 0.00 0.00 7 No Retail Yes
106 517.00 0.00 2922.00 3125.00 359.33 0.00 7 No Industrial Yes
107 2604.00 0.00 0.00 2272.50 1920.92 0.00 7 No Multifamily Yes
108 2116.00 0.00 0.00 4770.59 2337.00 0.00 7 No Multifamily No
109 415.03 0.00 0.00 7207.33 427.33 0.00 7 No Retail Yes
110 2500.00 0.00 0.00 4594.00 1030.58 0.00 7 No Hotel Yes
111 0.00 0.00 0.00 0.00 0.00 0.00 7 Yes Retail Yes
112 363.00 0.00 0.00 0.00 0.00 0.00 7 No Industrial No
113 227.67 0.00 0.00 4735.75 1073.08 0.00 7 No Retail Yes
114 733.33 0.00 0.00 2085.93 270.82 0.00 7 No Manufactured Housing Yes
115 0.00 0.00 0.00 11982.27 2151.00 0.00 7 No Office Yes
116 0.00 0.00 0.00 0.00 0.00 0.00 7 No Multifamily Yes
117 1508.00 0.00 3619.00 4987.03 1053.50 0.00 15 No Retail Yes
118 0.00 0.00 0.00 0.00 0.00 0.00 7 No Multifamily Yes
119 403.00 0.00 0.00 0.00 0.00 0.00 7 No Industrial No
120 291.25 0.00 0.00 1119.75 454.00 0.00 7 No Retail Yes
121 1723.87 0.00 0.00 10417.30 2977.00 0.00 4 No Industrial No
122 1212.59 0.00 0.00 10491.00 653.25 0.00 7 Yes Retail Yes
123 292.15 0.00 1250.00 2629.66 220.92 0.00 7 No Office Yes
124 4400.00 0.00 0.00 3952.17 2620.17 0.00 7 No Multifamily Yes
125 4066.67 0.00 0.00 3225.29 2631.98 0.00 7 No Hotel Yes
126 699.83 0.00 2083.33 0.00 0.00 0.00 7 No Industrial Yes
127 171.03 0.00 0.00 1933.69 1864.58 0.00 7 No Retail Yes
128 2520.83 0.00 0.00 6576.08 1406.40 0.00 7 No Multifamily Yes
129 564.90 0.00 1666.67 4019.64 675.08 0.00 7 No Retail Yes
130 3739.75 0.00 0.00 2350.10 2089.16 0.00 7 No Hotel Yes
131 214.92 0.00 0.00 3258.33 435.25 0.00 7 No Mixed Use No
132 333.33 0.00 3333.33 8654.25 1155.91 0.00 7 No Office Yes
133 112.50 0.00 1170.00 5820.56 297.50 0.00 10 No Retail Yes
134 5294.02 0.00 0.00 4458.58 1577.25 0.00 7 No Hotel Yes
135 77.71 0.00 0.00 793.44 300.00 0.00 7 No Multifamily Yes
136 3423.17 0.00 0.00 2244.22 1381.57 0.00 7 No Hotel Yes
137 2710.38 0.00 0.00 3097.58 2374.25 0.00 7 No Multifamily Yes
138 296.00 0.00 1083.00 1578.13 470.83 0.00 7 No Industrial Yes
139 896.92 0.00 1500.00 2727.10 1175.50 0.00 7 No Industrial Yes
140 0.00 0.00 1133.77 7333.33 673.25 0.00 7 No Retail Yes
141 1890.00 0.00 0.00 3993.93 1463.75 0.00 7 No Multifamily No
142 1659.00 0.00 4667.00 2235.78 413.25 0.00 7 No Retail Yes
143 108.00 0.00 1250.00 1134.73 477.75 0.00 7 No Retail Yes
144 285.08 0.00 0.00 1309.66 2839.72 0.00 7 No Office Yes
145 2078.00 0.00 0.00 2176.11 1144.17 0.00 7 No Multifamily Yes
146 1461.00 0.00 0.00 1167.84 727.83 0.00 7 No Multifamily Yes
147 76.30 0.00 489.59 2320.75 0.00 0.00 7 Yes Retail Yes
148 1041.67 0.00 0.00 1228.38 625.67 0.00 7 No Multifamily Yes
149 1140.00 0.00 0.00 1423.05 624.92 0.00 7 No Multifamily Yes
150 0.00 0.00 0.00 0.00 0.00 0.00 7 No Multifamily Yes
151 0.00 0.00 0.00 3468.92 909.58 0.00 7 No Retail Yes
Final Remaining
Interest Maturity Amortization Term
Loan # Accrual Period Loan Group Date for Balloon Loans
------ -------------- ---------- -------- -----------------
1 Actual/360 1
2 Actual/360 1
2.01 1
2.02 1
2.03 1
2.04 1
2.05 1
2.06 1
2.07 1
2.08 1
2.09 1
2.1 1
2.11 1
2.12 1
2.13 1
2.14 1
3 Actual/360 1 300
4 Actual/360 1
4.01 1
4.02 1
5 Actual/360 1
6 Actual/360 1 360
7 Actual/360 2 420
7.01 2 420
7.02 2 420
7.03 2 420
7.04 2 420
7.05 2 420
7.06 2 420
7.07 2 420
8 Actual/360 1 360
9 Actual/360 1 360
10 Actual/360 1
11 Actual/360 1 360
11.01 1 360
11.02 1 360
11.03 1 360
12 Actual/360 1 360
13 Actual/360 1 360
14 Actual/360 1 360
15 Actual/360 1 360
16 Actual/360 1
17 Actual/360 1 360
18 Actual/360 1 360
19 Actual/360 1 360
20 Actual/360 2
21 Actual/360 1
22 Actual/360 1 360
23 Actual/360 1 360
24 Actual/360 1 360
25 Actual/360 1 360
25.01 1 360
25.02 1 360
25.03 1 360
25.04 1 360
25.05 1 360
26 Actual/360 2 360
27 Actual/360 1
28 Actual/360 1 360
29 Actual/360 1 360
30 Actual/360 1 360
30.01 1 360
30.02 1 360
30.03 1 360
31 Actual/360 1
32 Actual/360 1 360
33 Actual/360 1 360
34 Actual/360 1
35 Actual/360 2
36 Actual/360 1 360
37 Actual/360 1 360
37.01 1 360
37.02 1 360
37.03 1 360
37.04 1 360
37.05 1 360
37.06 1 360
37.07 1 360
37.08 1 360
37.09 1 360
37.1 1 360
37.11 1 360
37.12 1 360
37.13 1 360
37.14 1 360
38 Actual/360 1 360
39 Actual/360 1 360
40 Actual/360 1 360
41 Actual/360 2 360
42 Actual/360 1 360
43 Actual/360 2 360
44 Actual/360 1 360
44.01 1 360
44.02 1 360
45 Actual/360 1 360
46 Actual/360 1 360
47 Actual/360 1 360
48 Actual/360 1 360
49 Actual/360 1 360
50 Actual/360 1 360
51 Actual/360 2 360
52 Actual/360 1 360
53 Actual/360 2 360
54 Actual/360 1 360
55 Actual/360 1
56 Actual/360 2 360
57 Actual/360 2 360
58 Actual/360 1 360
59 Actual/360 1 360
60 Actual/360 1 360
61 Actual/360 1 360
62 Actual/360 1 360
62.01 1 360
62.02 1 360
62.03 1 360
62.04 1 360
63 Actual/360 1 360
64 30/360 1 360
65 Actual/360 1 360
66 Actual/360 2 360
67 Actual/360 1 360
68 Actual/360 1 300
69 Actual/360 1
70 Actual/360 1 360
71 Actual/360 2 360
72 Actual/360 1 300
73 Actual/360 1 360
74 Actual/360 1 360
75 Actual/360 1 360
76 Actual/360 1 360
77 Actual/360 1 360
78 Actual/360 1 360
79 Actual/360 2
80 Actual/360 2 360
81 Actual/360 1 300
82 Actual/360 1
83 Actual/360 1 300
84 Actual/360 1 360
85 Actual/360 1 360
86 Actual/360 2 360
87 Actual/360 2 360
88 Actual/360 1 360
89 Actual/360 1
90 Actual/360 1 360
91 Actual/360 1 360
92 Actual/360 2 360
93 Actual/360 1 360
94 Actual/360 1 360
95 Actual/360 1 360
96 Actual/360 1 360
97 Actual/360 2 420
98 Actual/360 1
99 Actual/360 1 360
100 Actual/360 2
101 Actual/360 1 360
102 Actual/360 1 360
103 Actual/360 1 360
104 Actual/360 1 360
105 Actual/360 1 360
106 Actual/360 1 360
107 Actual/360 2 360
108 Actual/360 2 360
109 Actual/360 1 360
110 Actual/360 1 240
111 Actual/360 1 360
112 Actual/360 1 360
113 Actual/360 1 360
114 Actual/360 2 360
115 Actual/360 1 360
116 Actual/360 2
117 Actual/360 1 360
118 Actual/360 1
119 Actual/360 1 360
120 Actual/360 1 360
121 Actual/360 1 360
122 Actual/360 1 360
123 Actual/360 1 360
124 Actual/360 2 360
125 Actual/360 1 300
126 Actual/360 1 360
127 Actual/360 1 360
128 Actual/360 2 360
129 Actual/360 1 360
130 Actual/360 1 300
131 Actual/360 1 360
132 Actual/360 1
133 Actual/360 1 360
134 Actual/360 1 240
135 Actual/360 2 360
136 Actual/360 1 300
137 Actual/360 2 360
138 Actual/360 1 360
139 Actual/360 1 360
140 Actual/360 1 360
141 Actual/360 2 360
142 Actual/360 1 360
143 Actual/360 1 360
144 Actual/360 1 360
145 Actual/360 2 360
146 Actual/360 2 360
147 Actual/360 1 360
148 Actual/360 2 360
149 Actual/360 2 360
150 Actual/360 2
151 Actual/360 1 360
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Trustee and Paying Agent
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of November 28, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Wells Fargo Bank, N.A., as Master Servicer, LNR Partners,
Inc., as Special Servicer, and LaSalle Bank National Association, as Trustee and
as Paying Agent on behalf of the holders of J.P. Morgan Chase Commercial
Mortgage Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through
Certificates, Series 2006-CIBC17 (the "Certificates") in connection with the
transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Balance of Class ___
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[_] The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to
bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased by
it for its own account or for one or more accounts (each of which is
an "institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust Fund for any costs incurred by it
in connection with this transfer.
----------
* Purchaser must include one of the following two certifications.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Certificate or a Residual Certificate) to
institutional "accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act or (iii)
(other than with respect to a Residual Certificate) pursuant to any other
exemption from the registration requirements of the Securities Act, subject in
the case of clauses (ii) and (iii) above to (w) the receipt by the Certificate
Registrar of a letter substantially in the form hereof, (x) the receipt by the
Certificate Registrar of an opinion of counsel acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the Securities Act and other applicable
laws and (z) a written undertaking to reimburse the Trust for any costs incurred
by it in connection with the proposed transfer. The Purchaser understands that
the Certificate (and any subsequent Certificate) has not been registered under
the Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[_] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Paying Agent (or its agent) with respect to distributions to
be made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
----------
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates
8. Please make all payments due on the Certificates:****
[_] (a) by wire transfer to the following account at a bank or entity in
New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
[_] (b) by mailing a check or draft to the following address:
______________________________________________________
______________________________________________________
______________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
Dated:
----------
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is
[__________].
3. That the Transferee of a J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17, Class [R] [LR] Certificate (the "Class [R] [LR]
Certificate") is not a Disqualified Organization (as defined below) or an agent
thereof (including nominee, middleman or other similar person) (an "Agent"), or
an ERISA Prohibited Holder or a Non-U.S. Person (as defined below). For these
purposes, a "Disqualified Organization" means any of (i) the United States, any
State or political subdivision thereof, any possession of the United States, 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, majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any 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 (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause any of the [Upper-Tier REMIC], [the
Lower-Tier REMIC] to fail to qualify as a REMIC, 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 Residual
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. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are (or are permitted to be
under the related partnership agreement) owned, directly or indirectly (other
than through a U.S. corporation), through any partnership, trust or other
pass-through entity, by any person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
(as defined below) certifying that it has no actual knowledge that such Person
or entity is a Disqualified Organization, or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person and that it has no reason to know that
such Person or entity does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated November 28, 2006, by and among J.P. Morgan Chase
Commercial Mortgage Securities Corp., as Depositor, Wells Fargo Bank, N.A., as
Master Servicer, LNR Partners, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee and as Paying Agent (the "Pooling and Servicing
Agreement") as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a Disqualified Organization,
or an Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee agrees
to act as "tax matters person" and to perform the functions of "tax matters
person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and, in such event, agrees to
the irrevocable designation of the Trustee as the Transferee's agent in
performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class [R][LR]
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 U.S. person.
11. Check one of the following:
[_] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the 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.
[_] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
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
Regulation 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 Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, by its [Title of Officer] this _____ day of
__________, 20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] 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 __________, 20__.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Certificate Registrar
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Series 2006-CIBC17
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-
CIBC17,
Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
____________________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
__________[Date]
LaSalle Bank National Association
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17, REQUEST FOR RELEASE
Dear _______________________,
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 November 28, 2006 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Wells
Fargo Bank, N.A., as Master Servicer, LNR Partners, Inc., as Special Servicer,
and you, as Trustee and Paying Agent, the undersigned 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.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Master Servicer]
[Special Servicer] hereby certifies that all amounts
received in connection with the Mortgage Loan have been
or will be credited to the Certificate Account pursuant
to the Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER] [SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Trustee and Paying Agent
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance- Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities
Trust 2006-CIBC17, Commercial Mortgage Pass-Through
Certificates, Series 2006-CIBC17
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of J.P. Morgan Chase Commercial Mortgage Securities
Trust 2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17, Class __ (the "Certificate") issued pursuant to that certain
Pooling and Servicing Agreement, dated November 28, 2006 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as depositor ("Depositor"), Wells Fargo Bank, N.A., as master
servicer ("Master Servicer"), LNR Partners, Inc., as special servicer ("Special
Servicer"), and LaSalle Bank National Association, as trustee ("Trustee"), and
as paying agent ("Paying Agent"). Capitalized terms used and not otherwise
defined herein have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than an insurance company using the assets of
its "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption ("PTCE") 95-60) under circumstances
whereby the purchase and holding of Offered Private Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of PTCE 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an Opinion of Counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a "prohibited transaction" within the meaning of
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Paying Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Dealers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent, the
Dealers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_______________________________________
[The Purchaser]
By:______________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex C to the Prospectus Supplement dated November 16, 2006]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "LaSalle Bank National Association, as Trustee for the
registered holders of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17"
(the "Assignee"), having an office at 135 S. LaSalle Street, Suite 1625 Chicago,
Illinois 60603, Attn: J.P. Morgan Commercial Mortgage Securities Corp., Series
2006-CIBC17, its successors and assigns, all right, title and interest of the
Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By:______________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Trustee and Paying Agent
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17 Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated November 28, 2006 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Wells Fargo Bank, N.A., as Master Servicer, LNR
Partners, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee and as Paying Agent, on behalf of the holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance] [Notional Amount]of Certificates, in fully registered form (each, an
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17 Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated November 28, 2006 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Wells Fargo Bank, N.A., as Master Servicer, LNR
Partners, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee and as Paying Agent, on behalf of the holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance][Notional Amount] of Certificates, in fully registered form (each, an
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
LaSalle Bank National Association
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
Wells Fargo Bank, N.A.
45 Fremont Street, 2nd Floor
San Francisco, California 94105
JPMorgan Chase Bank
4 New York Plaza
New York, New York 10004
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC17
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the Pooling and Servicing
Agreement, dated November 28, 2006 (the "Pooling and Servicing Agreement"), by
and among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Wells Fargo Bank, N.A., as Master Servicer ("Master Servicer"),
LNR Partners, Inc., as special servicer ("Special Servicer"), and LaSalle Bank
National Association, as Trustee ("Trustee") and as Paying Agent ("Paying
Agent"). Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
Master Servicer in exchange for the release of the Mortgage Loan, the related
Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicer with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan [__], together with such other
documents or instruments as the Master Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicer's notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges
and affirms that it transferred its Purchase Option to the Option Holder
identified above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Trustee and Paying Agent
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17 Class [__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated November 28, 2006 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Wells
Fargo Bank, N.A., as Master Servicer, LNR Partners, Inc., as Special
Servicer, and LaSalle Bank National Association, as Trustee and as Paying
Agent, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________)
with the Depository in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest for an interest in the Regulation S Book-Entry Certificate (CUSIP
No. __________) to be held with [Euroclear] [CEDEL]* (Common Code
No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
----------
* Select appropriate depository.
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
Controlling Class Certificateholder's Reports Checklist
Information Format Frequency
------------------------------------ --------- ------------ -------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
(Master Servicer)*
Property Rent Roll (Master Actual PDF/TIF As received/Quarterly
Servicer)*
Other Financials as required by Actual PDF/TIF As received
loan documents (Master Servicer)
Property Inspection (Master Actual PDF/TIF As received/Quarterly
Servicer)*
Payments Received After
Determination Date Report Monthly Excel P&I Advance Date
(Master Servicer)(1)
Mortgage Loans Delinquent Report Monthly Excel 30th of each month
(Master Servicer)(2)
Interest on Advance Reconciliation Monthly Excel Distribution Date
(Master Servicer)
CMSA Setup File (Issuer/Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)
CMSA Property File (Master Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
(Master Servicer)
CMSA Financial File (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)
Distribution Statement (Paying Monthly Excel/PDF Monthly/Distribution Date
Agent)
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Supplemental Reports (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
(Master Servicer)*
NOI Adjustment Worksheet (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)*
Documentation Exceptions Report Quarterly Access/Excel Monthly/Distribution Date
(Trustee)
* Submit electronically with ARCap Naming Convention.
Footnotes:
(1) On the P&I Advance Date following the Determination Date for the related
Bond Certificateholder Distribution, a list of all mortgage loans which
are delinquent as to the applicable Distribution Period on the P&I Advance
Date. This list should represent all delinquent loans that required a P&I
Advance be made.
(2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in the Master Servicer's opinion, for the mortgage loans
continued delinquency, along with an explanation of the Master Servicer's
attempts to cure.
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17, Class [__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated November 28, 2006 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Wells
Fargo Bank, N.A., as Master Servicer, LNR Partners, Inc., as Special
Servicer, and LaSalle Bank National Association, as Trustee and as Paying
Agent, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are
held in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________)
with the Depository in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Certificates for an interest in the Regulation S Book-Entry
Certificate (Common Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE OF
REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
As Trustee and Paying Agent
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17, Class[__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated November 28, 2006 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Wells
Fargo Bank, N.A., as Master Servicer, LNR Partners, Inc., as Special
Servicer, and LaSalle Bank National Association, as Trustee and as Paying
Agent, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-CIBC17, Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are
held in the form of the Regulation S Book-Entry Certificate (CUSIP No.
_______) with [Euroclear] [Clearstream]* (Common Code No.__________) through
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation 144A Book-Entry Certificate
(CUSIP No.____________).
----------
* Select appropriate depository.
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer, the Special Servicer and Initial Purchasers of the offering
of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
As Certificate Registrar.
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17, Class_[__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated November 28, 2006 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Wells Fargo Bank, N.A., as Master Servicer, LNR
Partners, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee and as Paying Agent, on behalf of the holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2006-CIBC17, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC17 in connection with the transfer by
_______________ of a beneficial interest of $___________ [Certificate Balance]
[Notional Amount] in a Book-Entry Certificate during the Restricted Period to
the undersigned (the "Transferee"). The Transferee desires to beneficially own
such transferred interest in the form of the Regulation S Book-Entry
Certificate. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Master Servicer and the Special
Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT Q
INITIAL COMPANION HOLDERS
CBA Mezzanine Capital Finance, LLC shall be the initial Companion Holder
for the Robert Pitt Drive Companion Loan, the Liberty Arms Apartments Companion
Loan, the Standard Woods Apartments Companion Loan and the Winchester Business
Park Companion Loan. The City of Cleveland shall be the initial Companion Holder
for the Church Square Companion Loan. JPMorgan Chase Bank, National Association
shall be the initial Companion Holder for the RREEF Portfolio Mortgage Loan.
The addresses of CBA Mezzanine Capital Finance, LLC, the City of Cleveland
and JPMorgan Chase Bank, National Association are listed in Section 12.05 of
this Agreement.
EXHIBIT R
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attn: Commercial Mortgage Surveillance Group
From: Wells Fargo Bank, N.A., in its capacity as Master Servicer
(the "Master Servicer") under the Pooling and Servicing
Agreement dated as of November 28, 2006 (the "Pooling and
Servicing Agreement"), among the Master Servicer, LaSalle
Bank National Association, as Trustee and Paying Agent, and
others.
Date: _________, 20___
Re: J.P. Morgan Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates,
Series 2006-CIBC17
Mortgage Loan (the "Mortgage Loan") identified by loan
number _____ on the Mortgage Loan Schedule attached to the
Pooling and Servicing Agreement and heretofore secured by
the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for 'AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
'AAA' by [S&P], (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in [Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria"))] as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the [S&P Criteria]) in the name of the Defeasance Obligor, which
account is maintained as a securities account by a securities intermediary
and has been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the [S&P Criteria]), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by the
Master Servicer in accordance with the Servicing Standard stating that (i)
revenues from the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) [The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
WELLS FARGO BANK, N.A.
By: __________________________________
Name:
Title:
EXHIBIT S
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17
Pursuant to the Pooling and Servicing Agreement, dated as of
November 28, 2006 (the "Pooling and Servicing Agreement"), by and among J.P.
Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Wells Fargo
Bank, N.A., as Master Servicer, LNR Partners, Inc., as Special Servicer, and
LaSalle Bank National Association, as Trustee and as Paying Agent with
respect to J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-CIBC17, Commercial Mortgage Pass-Through Certificates, Series
2006-CIBC17 (the "Certificates"), the undersigned hereby certifies and agrees
as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Paying Agent's Internet Website pursuant to Section 4.02
of the Pooling Servicing Agreement.
3. In consideration of the Paying Agent'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 Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or 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 is
contemplating the purchase of any Certificate, but only if such person or entity
confirms in writing such 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 Certificate pursuant to
Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Pooling 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.
[HOLDER] [CERTIFICATE OWNER] [PROSPECTIVE
PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT T
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement, dated as of November 28, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Wells Fargo Bank, N.A., as Master Servicer, LNR Partners,
Inc., as Special Servicer, and LaSalle Bank National Association, as Trustee and
as Paying Agent, the undersigned, as Trustee, hereby certifies that, except as
noted on the attached Trustee Exception Report, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or for
which a Liquidation Event has occurred) the Trustee has, subject to Section
2.02(e) of the Pooling and Servicing Agreement, reviewed the documents delivered
to it pursuant to Section 2.01 of the Pooling and Servicing Agreement and has
determined that (i) all documents specified in clauses (i) through (v), (ix)
through (xii) and (xvi) (or, with respect to clause (xvi), a copy of such letter
of credit and the required officer's certificate), if any, of the definition of
"Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________
Name:
Title:
TRUSTEE EXCEPTION REPORT
SCHEDULE A
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Wells Fargo Bank, N.A.
45 Fremont Street, 2nd Floor
San Francisco, California 94105
LNR Partners, Inc.
1601 Washington Avenue, Suite 700
Miami Beach, Florida 33139
Fitch, Inc.
One State Street Plaza
New York, New York 10014
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
JPMorgan Chase Bank, National Association
270 Park Avenue, 10th Floor
New York, New York 10017
EXHIBIT U
[FORM OF NOTICE RELATING TO THE ONE & TWO PRUDENTIAL MORTGAGE LOAN]
[Date]
VIA FACSIMILE
Attention: [__________________]
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC17,
Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17
Dear [_____________]:
Wachovia Bank, National Association is the master servicer (the "One
& Two Prudential Master Servicer") for the One & Two Prudential Plaza Whole
Loan, as such term is defined under the Pooling and Servicing Agreement dated
November 28, 2006 (the "CIBC17 Pooling Agreement") by and among J.P. Morgan
Chase Commercial Mortgage Securities Corp., as depositor, Wells Fargo Bank,
N.A., as master servicer (the "CIBC17 Master Servicer"), LNR Partners, Inc., as
special servicer, and LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee") and as paying agent. The Trustee hereby directs the One
& Two Prudential Master Servicer, as follows:
The One & Two Prudential Master Servicer shall remit to the CIBC17
Master Servicer all amounts payable to, and forward, deliver or otherwise make
available, as the case may be, to the CIBC17 Master Servicer all reports,
statements, documents, communications, and other information that are to be
forwarded, delivered or otherwise made available to, the holder of the One & Two
Prudential Mortgage Loan (as such term is defined in the CIBC17 Pooling
Agreement) under the Intercreditor Agreement dated as of May 25, 2006 by and
among JPMorgan Chase Bank, N.A., as the Note A-1 Holder and JPMorgan Chase Bank,
N.A., as the Note A-2 Holder, and the Pooling Agreement and Servicing Agreement
dated as of June 1, 2006 by and among Xxxxx Fargo Bank, N.A., as master servicer
no. 1, the One & Two Prudential Master Servicer, as master servicer no. 2, LNR
Parnters, Inc., as special servicer, LaSalle Bank National Association, as
trustee and LaSalle Bank, National Association, as paying agent.
Thank you for your attention to this matter.
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee for the Holders of the X.X.
Xxxxxx Chase Commercial Mortgage
Securities Trust 2006-CIBC17,
Commercial Mortgage Pass-Through
Certificates, Series 2006-CIBC17.
Date: _________________________
LASALLE BANK NATIONAL ASSOCIATION
By: ___________________________
[Name]
[Title]
EXHIBIT V
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-CIBC17
Commercial Mortgage Pass-Through Certificates
Series 2006-CIBC17 (the "Trust")
I, [identifying the certifying individual], the President and Chief
Executive Officer of X.X. Xxxxxx Chase Commercial 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 on Form
10-D required to be filed in respect of period covered by this annual
report on Form 10-K, of the Trust (the "Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required 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 statement(s) required in
this report under Item 1123 of Regulation AB, and except as disclosed in
the Exchange Act Periodic Reports, the master servicer and the special
servicer have fulfilled their obligations under the pooling and servicing
agreement; and
5. All of the reports on assessment of compliance with servicing criteria and
their related attestation reports on assessment of compliance with
servicing criteria 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: Xxxxx Fargo Bank, N.A.,
LNR Partners, Inc. and LaSalle Bank National Association.
Date: _________________________
______________________________________
President and Chief Executive Officer
X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp.
EXHIBIT W-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY PAYING AGENT
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-CIBC17
Commercial Mortgage Pass-Through Certificates
Series 2006-CIBC17 (the "Trust")
I, [identifying the certifying individual], on behalf of [PAYING
AGENT], certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. and
its officers, directors and affiliates, 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__,
and all reports on Form 10-D required to be filed in respect of periods
covered by that annual report on Form 10-K, of the Trust (the "Exchange
Act Periodic Reports");
2. Based on my knowledge, the distribution information in 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 that
report on Form 10-K;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided to the paying agent by the master
servicer and the special servicer under the pooling and servicing
agreement for inclusion in the Exchange Act Periodic Reports is included
in such reports;
4. I am responsible for reviewing the activities performed by the Trustee and
based on my knowledge and the compliance reviews conducted in preparing
the Trustee compliance statements required for inclusion on Form 10-K
pursuant to Item 1123 of Regulation AB, and except as disclosed on any
Form 10-D or 10-K, the Trustee has fulfilled its obligations in all
material respects under the Pooling and Servicing Agreement; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Paying Agent in accordance with
Section 11.10 and Section 11.11 of the pooling and servicing agreement
discloses, with respect to the Paying Agent, all material instances of
noncompliance with the Relevant Servicing Criteria and such assessment of
compliance with servicing criteria is fairly stated in all material
respects.
Date:__________________________________
[PAYING AGENT]
By:____________________________________
[Name]
[Title]
EXHIBIT W-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-CIBC17
Commercial Mortgage Pass-Through Certificates
Series 2006-CIBC17 (the "Certificates")
I, [identify the certifying individual], on behalf of [MASTER
SERVICER], certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. and
their officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification in delivering the Certification required
by the pooling and servicing agreement relating to the Certificates (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the pooling and servicing agreement), that:
1. I have reviewed the servicing reports relating to the trust fund delivered
by the Master Servicer to the Paying Agent covering the fiscal year 20__;
2. Based on my knowledge, the servicing information in these 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 these servicing reports;
3. Based on my knowledge, the servicing information required to be provided
to the Paying Agent by the Master Servicer under the pooling and servicing
agreement for inclusion in the reports to be filed by the Paying Agent is
included in the servicing reports delivered by the Master Servicer to the
Trustee;
4. 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 compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and
servicing agreement with respect to the Master Servicer, and except as
disclosed in such compliance statement delivered by the Master Servicer
under Section 11.09 of the pooling and servicing agreement, the Master
Servicer has fulfilled its obligations under the pooling and servicing
agreement in all material respects in the year to which such review
applies; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and
Section 11.11 of the pooling and servicing agreement discloses all
material instances of noncompliance with the Relevant Servicing Criteria
and such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:__________________________________
[MASTER SERVICER]
By: __________________________________
[Name]
[Title]
EXHIBIT W-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-CIBC17
Commercial Mortgage Pass-Through Certificates
Series 2006-CIBC17 (the "Certificates")
I, [identify the certifying individual], on behalf of [SPECIAL
SERVICER], certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. and
their officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification in delivering the Certification required
by the pooling and servicing agreement relating to the Certificates (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the pooling and servicing agreement), that:
1. Based on my knowledge, the servicing information in the servicing reports
or information relating to the trust fund delivered by the Special
Servicer to the Master Servicer covering the fiscal year 20__, 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 these servicing reports;
2. Based on my knowledge, the servicing information required to be provided
to the Master Servicer by the Special Servicer under the pooling and
servicing agreement for inclusion in the reports to be filed by the Paying
Agent is included in the servicing reports delivered by the Special
Servicer to the Master Servicer;
3. I am responsible for reviewing the activities performed by the Special
Servicer under the pooling and servicing agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and
servicing agreement with respect to the Special Servicer, and except as
disclosed in such compliance statement delivered by the Special Servicer
under Section 11.09 of the pooling and servicing agreement, the Special
Servicer has fulfilled its obligations under the pooling and servicing
agreement in all material respects in the year to which such review
applies; and
4. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Special Servicer in accordance
with Section 11.10 and Section 11.11 of the pooling and servicing
agreement discloses, with respect to the Special Servicer, all material
instances of noncompliance with the Relevant Servicing Criteria and such
assessment of compliance with servicing criteria is fairly stated in all
material respects.
Date:__________________________________
[SPECIAL SERVICER]
By:____________________________________
[Name]
[Title]
EXHIBIT X
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the referenced party shall
address, at a minimum, the criteria identified below as "Relevant Servicing
Criteria":
SERVICING CRITERIA RELEVANT SERVICING
CRITERIA
Reference Criteria
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Paying Agent
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies Paying Agent
and procedures are instituted to monitor the third party's performance and Master Servicer
compliance with such servicing activities. Special Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer N/A
for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Master Servicer
participating in the servicing function throughout the reporting period in the Special Servicer
amount of coverage required by and otherwise in accordance with the terms of Custodian
the transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank Paying Agent
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor Paying Agent
are made only by authorized personnel. Master Servicer
Special Servicer
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
made, reviewed and approved as specified in the transaction agreements. Trustee
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Paying Agent
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Paying Agent
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a foreign Special Servicer
financial institution means a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Paying Agent
Master Servicer
Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed Paying Agent
securities related bank accounts, including custodial accounts and related bank Master Servicer
clearing accounts. These reconciliations are (A) mathematically accurate; (B) Special Servicer
prepared within 30 calendar days after the bank statement cutoff date, or such
other number of days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original identification, or such
other number of days specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Paying Agent
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 Reporting Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Paying Agent
timeframes, distribution priority and other terms set forth in the transaction
agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Paying Agent
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Paying Agent
checks, or other form of payment, or custodial bank statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Custodian
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Custodian
transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Custodian
and approved in accordance with any conditions or requirements in the Trustee
transaction agreements. Master Servicer
Special Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the Master Servicer
related mortgage loan documents are posted to the Servicer's obligor records Special Servicer
maintained no more than two business days after receipt, or such other number
of days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Reporting Servicer's records regarding the mortgage loans agree with the Master Servicer
Reporting Servicer's records with respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and related
pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and Special Servicer
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable)
are initiated, conducted and concluded in accordance with the timeframes or
other requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Such Special Servicer
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
variable rates are computed based on the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) Master Servicer
such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates,
or such other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf Master Servicer
of an obligor are paid from the servicer's funds and not charged to the
obligor, unless the late payment was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days Master Servicer
to the obligor's records maintained by the servicer, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
[NAME OF REPORTING SERVICER]
Date:___________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT Y
ADDITIONAL FORM 10-D DISCLOSURE
Item on Form 10-D Party Responsible
Item 1: Distribution and Pool Trustee
Performance Information Depositor
Any information required by Item 1121
of Regulation AB which is NOT included
on the Monthly Statement
Item 2: Legal Proceedings (i) All parties to the Pooling and
Servicing Agreement (as to
per Item 1117 of Regulation AB (to the themselves), (ii) as to litigation to
extent material to Certificateholders) which they respectively have
knowledge, the Trustee, the Master
Servicer and the Special Servicer as
to the issuing entity (in the case of
the Master Servicer and the Special
Servicer, to be reported by the party
controlling such litigation pursuant
to Section 3.32 of the Pooling and
Servicing Agreement), (iii) the
Depositor as to the sponsors, 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 Trustee
Vote of Security Holders
Item 6: Significant Obligors of Pool Depositor
Assets
Item 7: Significant Enhancement Depositor
Provider Information
Item 8: Other Information Any party responsible for disclosure
items on Form 8-K
Item 9: Exhibits Trustee
Depositor
EXHIBIT Z
ADDITIONAL FORM 10-K DISCLOSURE
Item on Form 10-K Party Responsible
Item 1B: Unresolved Staff Comments Depositor
Item 9B: Other Information Any party responsible for disclosure
items on Form 8-K
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
Additional Item: (i) All parties to the Pooling and
Servicing Agreement (as to
Disclosure per Item 1117 of Regulation themselves), (ii) as to litigation to
AB (to the extent material to which they respectively have
Certificateholders) knowledge, the Trustee, the Master
Servicer and the Special Servicer as
to the issuing entity (in the case of
the Master Servicer and the Special
Servicer, to be reported by the party
controlling such litigation pursuant
to Section 3.32 of the Pooling and
Servicing Agreement), (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 Regulation Servicing Agreement as to themselves,
AB (ii) the Depositor as to the sponsor,
originator, significant obligor,
enhancement or support provider
Additional Item: Depositor
Disclosure per Item 1112(b) of
Regulation AB
Additional Item: Depositor
Disclosure per Items 1114(b)(2) and
1115(b) of Regulation AB
EXHIBIT AA
FORM 8-K DISCLOSURE INFORMATION
Item on Form 8-K Party Responsible
Item 1.01- Entry into a Material All parties (only as to agreements
Definitive Agreement such entity is a party to or entered
into on behalf of the Trust Fund)
Item 1.02- Termination of a Material All parties (only as to agreements
Definitive Agreement 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 Depositor
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 Master Servicer, Master Servicer
Special Servicer or Trustee Special Servicer
Trustee
Depositor
Item 6.03- Change in Credit Depositor
Enhancement 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- Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
EXHIBIT BB
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO (000) 000-0000 AND VIA EMAIL TO
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
LaSalle Bank National Association, as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2006
CIBC17--SEC REPORT PROCESSING
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
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 November [__], 2006, among Xxxxx Fargo Bank, N.A., as
master servicer, LNR Partners, Inc., as special servicer and LaSalle Bank
National Association, as trustee and as paying agent, the undersigned, as
[__________], hereby notifies you that certain events have come to our attention
that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be
directed to [_______________________], phone number: [_________]; email
address: [___________________].
[NAME OF PARTY],
as [role]
By:______________________________________
Name:
Title:
SCHEDULE 1
Mortgage Loans Containing Additional Debt
Mortgage Loan No. Property Name
----------------- --------------------------
1 Bank of America Plaza
25 Com Realty Portfolio
90 Saint Rita's
95 The Patio Shops
103 Towne Center at Xxxxxxxx Trail
104 Xxxxxx Oceanics Building
124 River Xxxx Apartments
SCHEDULE 2
Mortgage Loans Which Initially Pay Interest Only
Mortgage Loan No. Property Name
----------------- ----------------------------------------
1 Bank of America Plaza
2 Centro Heritage Portfolio
4 CNL Center I & II
0 Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxxxxxx
6 Three Parkway
9 The Shops at the Galleria
10 The Towers
11 Xxxxxx'x Hill
12 Dallas Design Center
13 00 X 00xx Xx
00 Xxxxxx Kai Shopping Center
00 Xxxxx Xxxxxxxx Xxxxx
00 Xxx Xxxx Xxxxxxxx Xxxx
18 Lutherville Station
19 Washington Pointe
20 AMLI on the Green
21 Culebra Market
00 Xxxxx Xxxxx Xxxxxx
00 Xxxxxxxxx Xxxx Center II
24 Xxxx Xxxxxx Shoppes
25 Com Realty Portfolio
26 Archstone Brentwood Apartments
27 000 Xxxx 00xx Xxxxxx
28 Edison Mall Shopping Center
29 Points East Shopping Center
31 Allied Insurance Building
32 Grandview II
33 99 Founders Plaza
34 Sunnyside Industrial Center
35 Bridges of Xxxxxxxx Xxxxxxxxxx
00 Xxxxxxxxx Xxxx Center I
00 Xxxxxx Xxxx and Northlake Portfolio
39 Lakepoint Office Park
41 Xxxxxx Farm Apartments
00 Xxxxxx Xxxxxx
00 Xxxxx X: Arbors of Traverse
00 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxxxx Office Tower
48 00 Xxxxxxxxxx Xxxxxx
50 Xxxxxx'x Crossing Shopping Center
00 Xxxxx Xxxxx Xxxxxxxxxx
00 00000 Xxxxxxx
53 Foxfire Apartments
54 Scotland Crossing Shopping Center
55 Linens N' Things
56 Woodhollow Apartments
57 Superstition Villas
00 Xxxxxxx Xxxxxx Shopping Center
60 Xxxxxx Super Center
00 Xxx Xxxxx Xxxx
00 Xxx Xxxxxxxx Plaza II
00 Xxxx Xxxx Xxxxx
00 Xxxx Xxxx Apartments
67 Xxxxxxxx Plaza
69 145 West 71st Street
71 Campus Crossing Phase II
00 Xxxxxxxxxx Xxxxxx
74 Independence Plaza II
76 Windermere Center
77 Glendale Shopping Center
79 128 Fort Washington Ave
80 The Preserve at Grande Oaks II
00 Xxxxxxxxxx Xxxxxxxxxx Xxxx
00 Xxx Xxxxx Xxxxxxx
89 Galleria West Shopping Center
90 Saint Rita's
92 Westwood Apartments
93 Xxxxxxxx Commerce Center
95 The Patio Shops
96 Business Center at Riverside
98 Xxxxxxxx Crossing Apartments
100 000 Xxxx 000 Xxxxxx
000 Xxxxxxx Xxxxx
000 Xxxxxx Oceanics Building
106 Sioux Falls Corporate Centre III
000 Xxxx Xxxxx Xxxxxxxxxx
000 Xxxxxxxx Xxxxxxx Apartments
109 Xxxxxxx Shopping Center
111 CVS Goldenrod
000 Xxxxxxxxxx Xxxxx
116 0000 Xxxxxxxxx Xxxxx
118 000 Xxxx 00xx Xxxxxx
000 00000 X. Xxxxxxx Expressway
000 Xxxxx Xxxx Xxxxxxxxxx
000 Xxxxxxxxx Apartments
132 0 Xxxxxxxx Xxxxx
133 Lakeline Center
135 0000 Xxxx Xxxxx Xxxxxx
137 Oakhill Manor Apartments
000 Xxxx Xxxxxx Xxxxxxxxxx
000 Shoppes of Hebron
144 East Kauai Professional Building
145 Xxxxxxx Court Apartments
000 Xxxxxxxxx Xxxxx Xxxxxxxxxx
000 Xxxxxxx Xxxxxx
000 Xxxx Xxxxx X Xxxxxxxxxx
000 Xxxxx Xxxxxxxx Court Apartments
150 000 Xxxx 000xx Xxxxxx
SCHEDULE 3
Class A-SB Planned Principal Balance Schedule
Date Balance
--------------------------------- -----------------------
December 12, 2006............ $89,092,000.00
January 12, 2007............. $89,092,000.00
February 12, 2007............ $89,092,000.00
March 12, 2007............... $89,092,000.00
April 12, 2007............... $89,092,000.00
May 12, 2007................. $89,092,000.00
June 12, 2007................ $89,092,000.00
July 12, 2007................ $89,092,000.00
August 12, 2007.............. $89,092,000.00
September 12, 2007........... $89,092,000.00
October 12, 2007............. $89,092,000.00
November 12, 2007............ $89,092,000.00
December 12, 2007............ $89,092,000.00
January 12, 2008............. $89,092,000.00
February 12, 2008............ $89,092,000.00
March 12, 2008............... $89,092,000.00
April 12, 2008............... $89,092,000.00
May 12, 2008................. $89,092,000.00
June 12, 2008................ $89,092,000.00
July 12, 2008................ $89,092,000.00
August 12, 2008.............. $89,092,000.00
September 12, 2008........... $89,092,000.00
October 12, 2008............. $89,092,000.00
November 12, 2008............ $89,092,000.00
December 12, 2008............ $89,092,000.00
January 12, 2009............. $89,092,000.00
February 12, 2009............ $89,092,000.00
March 12, 2009............... $89,092,000.00
April 12, 2009............... $89,092,000.00
May 12, 2009................. $89,092,000.00
June 12, 2009................ $89,092,000.00
July 12, 2009................ $89,092,000.00
August 12, 2009.............. $89,092,000.00
September 12, 2009........... $89,092,000.00
October 12, 2009............. $89,092,000.00
November 12, 2009............ $89,092,000.00
December 12, 2009............ $89,092,000.00
January 12, 2010............. $89,092,000.00
February 12, 2010............ $89,092,000.00
March 12, 2010............... $89,092,000.00
April 12, 2010............... $89,092,000.00
May 12, 2010.................. $89,092,000.00
June 12, 2010................. $89,092,000.00
July 12, 2010................. $89,092,000.00
August 12, 2010............... $89,092,000.00
September 12, 2010............ $89,092,000.00
October 12, 2010.............. $89,092,000.00
November 12, 2010............. $89,092,000.00
December 12, 2010............. $89,092,000.00
January 12, 2011.............. $89,092,000.00
February 12, 2011............. $89,092,000.00
March 12, 2011................ $89,092,000.00
April 12, 2011................ $89,092,000.00
May 12, 2011.................. $89,092,000.00
June 12, 2011................. $89,092,000.00
July 12, 2011................. $89,092,000.00
August 12, 2011............... $89,092,000.00
September 12, 2011............ $89,092,000.00
October 12, 2011.............. $89,091,461.19
November 12, 2011............. $87,814,502.66
December 12, 2011............. $86,228,166.33
January 12, 2012.............. $84,842,054.47
February 12, 2012............. $83,448,718.71
March 12, 2012................ $81,650,205.70
April 12, 2012................ $80,240,236.86
May 12, 2012.................. $78,624,497.80
June 12, 2012................. $77,198,760.55
July 12, 2012................. $75,567,678.74
August 12, 2012............... $74,126,010.68
September 12, 2012............ $72,676,828.70
October 12, 2012.............. $71,022,934.93
November 12, 2012............. $69,557,580.67
December 12, 2012............. $67,887,951.15
January 12, 2013.............. $66,406,258.02
February 12, 2013............. $64,916,842.04
March 12, 2013................ $62,832,074.87
April 12, 2013................ $61,324,032.56
May 12, 2013.................. $59,612,867.64
June 12, 2013................. $58,088,046.79
July 12, 2013................. $56,360,556.24
August 12, 2013............... $54,818,784.03
September 12, 2013............ $53,268,883.62
October 12, 2013.............. $51,537,040.85
November 12, 2013............. $49,987,005.31
December 12, 2013............. $48,245,660.64
January 12, 2014.............. $46,685,529.11
February 12, 2014............. $45,117,271.41
March 12, 2014................ $42,972,437.40
April 12, 2014................ $41,384,843.06
May 12, 2014.................. $39,600,133.30
June 12, 2014................. $37,994,974.57
July 12, 2014................. $36,193,174.56
August 12, 2014............... $34,570,270.64
September 12, 2014............ $32,938,913.08
October 12, 2014.............. $31,111,621.35
November 12, 2014............. $29,462,248.93
December 12, 2014............. $27,617,428.62
January 12, 2015.............. $25,949,855.90
February 12, 2015............. $24,273,596.49
March 12, 2015................ $22,030,634.49
April 12, 2015................ $20,333,963.04
May 12, 2015.................. $18,443,120.80
June 12, 2015................. $16,727,762.18
July 12, 2015................. $14,818,737.22
August 12, 2015............... $13,083,822.24
September 12, 2015............ $11,347,290.87
October 12, 2015.............. $9,418,407.39
November 12, 2015............. $7,662,777.68
December 12, 2015............. $5,715,311.36
January 12, 2016.............. $3,940,386.66
February 12, 2016............. $2,156,212.85
March 12, 2016................ $ --
SCHEDULE 4
Earnouts and Holdbacks
Mortgage Loan No. Property Name
----------------- --------------------------
1 Bank of America Plaza
4 CNL Center I & II
7 CityView Portfolio II
11 Xxxxxx'x Xxxx
13 00 X 00xx Xx
00 Xxxxxx Kai Shopping Center
00 Xxxxx Xxxxxxxx Xxxxx
00 Xxx Xxxx Xxxxxxxx Xxxx
00 Xxxxxxxxxx Xxxxxx
00 Xxxxxxxxx Xxxx Center II
39 Lakepoint Office Park
50 Xxxxxx'x crossing Shopping Center
54 Scotland Crossing Shopping Center
00 Xxxx Xxxx Xxxxx
00 Xxxxxxxx Xxxxx
00 Xxxxxxxx Shopping Center
88 00000 Xxxxxxxxxx Xxxxxx
97 The Palms of El Mirage
