EXHIBIT 4.2
------------------------------------------------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
and
CWCAPITAL LLC,
Sub-Servicer
------------------------------------------------------------
SUB-SERVICING AGREEMENT
Dated as of December 1, 2006
------------------------------------------------------------
COBALT CMBS Commercial Mortgage Trust 2006-C1
Commercial Mortgage Pass-Through Certificates
Series 2006-C1
------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms...............................................
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents..................................................
Section 2.02 Notice of Breach of Representations and Warranties..........
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.....................................
Section 3.02 Merger or Consolidation of the Sub-Servicer.................
Section 3.03 Limitation on Liability of the Sub-Servicer and Others......
Section 3.04 Sub-Servicer Not to Resign..................................
Section 3.05 No Transfer or Assignment of Servicing......................
Section 3.06 Indemnification.............................................
ARTICLE IV
DEFAULT
Section 4.01 Events of Default...........................................
Section 4.02 Waiver of Defaults..........................................
Section 4.03 Other Remedies of Master Servicer...........................
ARTICLE V
TERMINATION
Section 5.01 Termination.................................................
Section 5.02 Termination With Cause......................................
Section 5.03 Termination of Duties with Respect to Specially Serviced
Mortgage Loans.............................................
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer...............................
Section 6.02 Financial Statements........................................
Section 6.03 Closing.....................................................
Section 6.04 Closing Documents...........................................
Section 6.05 Notices.....................................................
Section 6.06 Severability Clause.........................................
Section 6.07 Counterparts................................................
Section 6.08 Governing Law...............................................
Section 6.09 Protection of Confidential Information......................
Section 6.10 Intention of the Parties....................................
Section 6.11 Third Party Beneficiary.....................................
Section 6.12 Successors and Assigns; Assignment of Agreement.............
Section 6.13 Waivers.....................................................
Section 6.14 Exhibits....................................................
Section 6.15 General Interpretive Principles.............................
Section 6.16 Complete Agreement..........................................
Section 6.17 Further Agreement...........................................
Section 6.18 Amendments..................................................
EXHIBIT A MORTGAGE LOAN SCHEDULE.....................................
EXHIBIT B SUB-SERVICER'S OFFICER'S CERTIFICATE.......................
EXHIBIT C POOLING AND SERVICING AGREEMENT............................
EXHIBIT D [RESERVED].................................................
EXHIBIT E FORM OF QUARTERLY SERVICING CERTIFICATION..................
EXHIBIT F FORM OF ACCOUNT CERTIFICATION..............................
EXHIBIT G FORM OF COLLECTION REPORT..................................
EXHIBIT H FORM OF CERTIFICATE OF INSURANCE...........................
EXHIBIT I [RESERVED].................................................
EXHIBIT J FORM OF MONTHLY SERVICING ACCOUNT CERTIFICATION............
This is a Sub-Servicing Agreement (the "Agreement"), dated as of December
1, 2006, by and between CWCAPITAL LLC, having an office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and its successors and assigns (the
"Sub-Servicer"), and WACHOVIA BANK, NATIONAL ASSOCIATION, having an office at NC
1075, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and its
successors and assigns (the "Master Servicer").
W I T N E S S E T H:
WHEREAS, CWCapital Commercial Funding Corp. (the "Depositor"), ▇▇▇▇▇
Fargo Bank, N.A. (the "Trustee"), CWCapital Asset Management LLC (the "Special
Servicer") and the Master Servicer have entered into that certain Pooling and
Servicing Agreement dated as of December 1, 2006, as amended, modified and
restated from time to time (the "Pooling and Servicing Agreement"), whereby the
Master Servicer shall master service certain mortgage loans on behalf of the
Trustee; and
WHEREAS, the Master Servicer desires to enter into a contract with
the Sub-Servicer whereby the Sub-Servicer shall service certain of such mortgage
loans listed on Exhibit A (the "Mortgage Loan Schedule") attached hereto (the
"Mortgage Loans") on behalf of the Master Servicer.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Master Servicer and
the Sub-Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Pooling
and Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01:
"Affiliate" shall mean, with respect to any specified Person, any
other Person owning or owned by or maintaining an ownership interest in such
specified Person or under common ownership with such Person.
"Collection Report" shall mean the monthly report prepared by the
Sub-Servicer setting forth, with respect to each Mortgage Loan and the most
recently ended Collection Period prior to the due date of such report, the
information described on Exhibit G attached hereto.
"Event of Default" shall have the meaning specified in Section
4.01 of this Agreement.
"Mortgage Loans" shall have the meaning specified in the recitals
hereto.
"Mortgage Loan Schedule" shall have the meaning specified in the
recitals hereto.
"Sub-Servicer Custodial Account" shall have the meaning specified
in Section 3.01(c)(6) of this Agreement.
"Sub-Servicer Remittance Amount" shall mean, with respect to any
date, an amount equal to, without duplication, (a) the sum of (i) the aggregate
of the amounts on deposit in the Sub-Servicer Custodial Account (as defined
herein) as of such date, (ii) any Prepayment Interest Shortfalls required to be
deposited by the Sub-Servicer pursuant to Section 3.20(a) of the Pooling and
Servicing Agreement as incorporated pursuant to Section 3.01(c)(23) of this
Agreement, (iii) if and to the extent not included in the amount referred to in
subclause (a)(i), the aggregate amount transferred from the REO Account (if
established) to the Sub-Servicer as of such date to the extent not previously
remitted to the Master Servicer and (iv) the aggregate of all other amounts
received with respect to the Mortgage Loans as of such date to the extent not
previously remitted to the Master Servicer, net of (b) the portion of the amount
described in subclause (a) of this definition that represents one or more of the
following: (i) Escrow Payments or (ii) any amounts that the Sub-Servicer is
entitled to retain as compensation pursuant to Section 3.11 of the Pooling and
Servicing Agreement as incorporated herein pursuant to Sections 3.01(c)(17) of
this Agreement.
"Sub-Servicer Remittance Date" shall mean the 8th calendar day of
each month, or if such 8th calendar day is not a Business Day, then the
immediately succeeding Business Day.
"Sub-Servicing Fee" shall mean, with respect to each Mortgage
Loan and REO Loan, the fee payable to the Sub-Servicer pursuant to Section
3.01(c)(17) of this Agreement.
"Sub-Servicing Fee Rate" shall mean, with respect to each Mortgage
Loan, the rate that corresponds to such Mortgage Loan set forth on Exhibit A
hereto under the heading "Sub-Servicer Fee".
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents.
The Master Servicer, by execution and delivery of this Agreement,
does hereby contract with the Sub-Servicer, subject to the terms of this
Agreement, for the servicing of the Mortgage Loans. On and after the Closing
Date, the Sub-Servicer shall hold any portion of the Servicing File or the
Mortgage File in the possession of the Sub-Servicer in trust by the
Sub-Servicer, on behalf of the Master Servicer for the benefit of the Trustee.
The Sub-Servicer's possession of any portion of the Servicing File or the
Mortgage File shall be at the will of the Master Servicer and the Trustee for
the sole purpose of facilitating the servicing or the supervision of servicing
of the related Mortgage Loan pursuant to this Agreement, and such retention and
possession by the Sub-Servicer shall be in a custodial capacity only. Any
portion of the Servicing File or the Mortgage File retained by the Sub-Servicer
shall be identified to reflect clearly the ownership of the related Mortgage
Loan by the Trustee. The Sub-Servicer shall release from its custody any
Mortgage File retained by it only in accordance with this Agreement and the
Pooling and Servicing Agreement. The Sub-Servicer shall provide to the Master
Servicer as soon as practicable after request therefor by the Master Servicer a
copy of any documents held by it with respect to any Mortgage Loan. During the
term of this Agreement, the Sub-Servicer will also provide to the Master
Servicer a copy of any lease, amendments to Mortgage Loan documents and other
material documents related to the Mortgaged Property securing the related
Mortgage Loan or related to the Mortgage Loan as soon as possible after receipt
or execution thereof, as applicable.
Section 2.02 Notice of Breach of Representations and Warranties and
Document Defects.
The Sub-Servicer shall promptly notify the Master Servicer upon
becoming aware of any breach of any representations and warranties contained in
any applicable Mortgage Loan Purchase Agreement or a document defect that could
give rise to a cure or repurchase obligation.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
(a) The Sub-Servicer, as an independent contractor, shall service
and administer the Mortgage Loans in a manner consistent with the Servicing
Standard under the Pooling and Servicing Agreement.
(b) The Sub-Servicer shall perform, on behalf of the Master
Servicer, all of the obligations of the Master Servicer (with respect to the
Mortgage Loans subject to this Agreement) as set forth in those sections of the
Pooling and Servicing Agreement incorporated herein pursuant to Section 3.01(c)
of this Agreement (the "Incorporated Sections"), as modified by Section 3.01(c)
of this Agreement, and the Master Servicer shall have the same rights with
respect to the Sub-Servicer that the Trustee, the Depositor, the Underwriters,
the Rating Agencies and the Certificateholders (including, without limitation,
the right of the Special Servicer to direct the Master Servicer during certain
periods) have with respect to the Master Servicer under the Pooling and
Servicing Agreement to the extent that the Sub-Servicer is acting on behalf of
the Master Servicer hereunder and except as otherwise set forth herein. Without
limiting the foregoing, and subject to Section 3.22 of the Pooling and Servicing
Agreement as modified herein, the Sub-Servicer shall service and administer all
Mortgage Loans that are not Specially Serviced Mortgage Loans; provided,
however, that the Sub-Servicer shall continue to collect information and prepare
all reports to the Trustee required from the Master Servicer under the Pooling
and Servicing Agreement with respect to any Specially Serviced Mortgage Loans
and REO Properties (and the related REO Loans), and further to render such
incidental services with respect to any Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for therein; provided, further,
however, that, if the Special Servicer is not an Affiliate of the Sub-Servicer,
the Sub-Servicer shall not be liable for its failure to comply with such duties
insofar as such failure results from a failure by the Special Servicer to
provide sufficient information to the Sub-Servicer to comply with such duties or
failure by the Special Servicer to otherwise comply with its obligations under
the Pooling and Servicing Agreement. All references herein to the respective
duties of the Sub-Servicer and the Special Servicer, and to the areas in which
they may exercise discretion, shall be subject to Section 3.22 of the Pooling
and Servicing Agreement, as modified herein and to the Special Servicer's rights
to service Specially Serviced Mortgage Loans. Except as otherwise set forth
below, for purposes of this Agreement, references to the Trustee, the Depositor,
the Underwriters, the Rating Agencies and the Certificateholders in the
Incorporated Sections (and in the defined terms used therein) shall be deemed to
be references to the Master Servicer hereunder and references to the Master
Servicer in the Incorporated Sections (and in the defined terms used therein)
shall be deemed to be references to the Sub-Servicer hereunder (such
modification of the Incorporated Sections shall be referred to herein as the
"References Modification").
(c) The following Sections of the Pooling and Servicing Agreement,
unless otherwise provided in this Section 3.01(c) of this Agreement, are hereby
incorporated herein by reference as if fully set forth herein, and, for purposes
of this Agreement, in addition to the References Modification, are hereby
further modified as set forth below:
(1) Section 3.01. Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor and
certify the information on each Mortgage Loan as required by, and in the form
of, Exhibit E attached hereto, pursuant to Section 3.01(c)(29) of this
Agreement. In addition, without limiting the generality of the foregoing, the
Sub-Servicer shall take all necessary action to continue all UCC Financing
Statements with respect to each Mortgage Loan prior to the expiration of such
UCC Financing Statements.
(2) Section 3.02(a). The Sub-Servicer shall not waive any
Default Interest or late payment charge. The determination as to the application
of amounts collected in respect of any Mortgage Loan, to the extent the
application is not governed by the express provisions of the related Mortgage
Note or Mortgage, shall be made by the Master Servicer.
(3) Section 3.03(a). The creation of any Servicing Account
shall be evidenced by a certification in the form of Exhibit F attached hereto
and a copy of such certification shall be furnished to the Master Servicer on or
prior to the Closing Date and thereafter to the Master Servicer upon any
transfer of the Servicing Account.
(4) Section 3.03(b) and (c). Without limiting the generality of
the obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and, within fifteen (15) days after the end of each calendar quarter, beginning
with the quarter ending March 31, 2007, certify the information on each Mortgage
Loan with respect to taxes, insurance premiums, assessments, ground rents and
other similar items, as required by, and in the form of, Exhibit E attached
hereto, pursuant to Section 3.01(c)(29) of this Agreement. The Sub-Servicer
shall not be obligated to make any Servicing Advances, except as described in
the next following sentence. The Sub-Servicer shall give the Master Servicer not
less than five (5) Business Days' notice before the date on which the Master
Servicer is required to make any Servicing Advance with respect to any Mortgage
Loan; provided, however, that, with respect to any Servicing Advance required to
be made on an urgent or emergency basis such that the Sub-Servicer is unable to
provide the Master Servicer with sufficient notice to make such Servicing
Advance, the Sub-Servicer shall make such Servicing Advance and, notwithstanding
Section 3.23(a) of the Pooling and Servicing Agreement, the Master Servicer
shall reimburse the Sub-Servicer for such Servicing Advance within five Business
Days of receipt of written request therefor and interest thereon at the
Reimbursement Rate without regard to the Master Servicer's determination of
recoverability. In addition, the Sub-Servicer shall provide the Master Servicer
with such information in its possession as the Master Servicer may reasonably
request to enable the Master Servicer to determine whether a requested Servicing
Advance would constitute a Nonrecoverable Servicing Advance.
(5) Section 3.03(d). The creation of any Reserve Account shall
be evidenced by a certification in the form of Exhibit F attached hereto and a
copy of such certification shall be furnished to the Master Servicer on or prior
to the Closing Date and thereafter to the Master Servicer upon any transfer of
the Reserve Account.
(6) Section 3.04(a). The Sub-Servicer shall establish a
collection account (hereinafter the "Sub-Servicer Custodial Account"), meeting
all of the requirements of the Pool Custodial Account, and references to the
Pool Custodial Account shall be references to such Sub-Servicer Custodial
Account. The creation of any Sub-Servicer Custodial Account shall be evidenced
by a certification in the form of Exhibit F attached hereto and a copy of such
certification shall be furnished to the Master Servicer on or prior to the
Closing Date and thereafter to the Master Servicer upon any transfer of the
Sub-Servicer Custodial Account. For purposes of the second to last paragraph of
Section 3.04(a) of the Pooling and Servicing Agreement, unless the Special
Servicer is an Affiliate of the Sub-Servicer, the Master Servicer shall direct
the Special Servicer to make payment of amounts referenced therein directly to
the Sub-Servicer for deposit in the Sub-Servicer Custodial Account.
(7) Section 3.04(b). References to the Distribution Account
shall be references to the Pool Custodial Account. References to the Master
Servicer Remittance Amount shall be references to the Sub-Servicer Remittance
Amount and references to the Master Servicer Remittance Date shall be references
to the Sub-Servicer Remittance Date. Each remittance required to be made to the
Master Servicer on the Sub-Servicer Remittance Date shall be made by wire
transfer and shall be made by 2:00 p.m. New York City time on such date. Each
month, by 2:00 p.m. New York City time, on each Business Day between the
Sub-Servicer Remittance Date and the Distribution Date, the Sub-Servicer shall
forward to the Master Servicer by wire transfer the Sub-Servicer Remittance
Amount (as defined herein) for such date; provided, however, that the
Sub-Servicer will not be in breach of its obligations under this sentence so
long as it forwards such amounts to the Master Servicer within 24 hours of its
receipt. Each month, by 2:00 p.m. New York City time on each Business Day that
the Sub-Servicer is not required to remit to the Master Servicer pursuant to the
previous sentence, the Sub-Servicer shall forward to the Master Servicer by wire
transfer all amounts collected by the Sub-Servicer and not previously remitted
to the Master Servicer which constitute delinquent payments on the Mortgage
Loans and any related late fees or Default Interest (excluding any amounts to
which the Sub-Servicer is entitled to as compensation pursuant to Section 3.11
of the Pooling and Servicing Agreement as incorporated herein pursuant to
Sections 3.01(c)(17) of this Agreement); provided, however, that the
Sub-Servicer will not be in breach of its obligations under this sentence so
long as it forwards such amounts to the Master Servicer within 24 hours of its
receipt. Section 3.01(c)(29) of this Agreement sets forth certain reporting
requirements with respect to such remittances. The third (as to clause (i)
thereof) and fourth paragraphs of Section 3.04(b) of the Pooling and Servicing
Agreement are not incorporated herein.
(8) [Reserved].
(9) Section 3.05 of the Pooling and Servicing Agreement is not
incorporated herein. The Sub-Servicer may, from time to time, make withdrawals
from the Sub-Servicer Custodial Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Master Servicer for deposit in the
Pool Custodial Account the amounts required to be so deposited pursuant to the
first paragraph of Section 3.04(b) of the Pooling and Servicing Agreement and
Section 3.01(c)(7) of this Agreement;
(ii) to pay to itself earned and unpaid Sub-Servicing Fees
in respect of each Mortgage Loan and REO Loan, the Sub-Servicer's right to
payment pursuant to this clause (ii) with respect to any Mortgage Loan or REO
Loan being limited to amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Liquidation Proceeds or Insurance Proceeds) or
such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iii) to pay to itself, as additional servicing
compensation in accordance with Section 3.11 of the Pooling and Servicing
Agreement, interest or other income earned in respect of amounts held in the
Sub-Servicer Custodial Account as provided in Section 3.01(c)(10) of this
Agreement, but only to the extent of the Net Investment Earnings, if any, with
respect to the Sub-Servicer Custodial Account for any Collection Period;
(iv) to clear and terminate the Sub-Servicer Custodial
Account at the termination of this Agreement pursuant to Section 9.01 of the
Pooling and Servicing Agreement, as modified herein; and
(v) to withdraw any amounts deposited in the Sub-Servicer
Custodial Account in error.
The Sub-Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Sub-Servicer Custodial Account pursuant
to clauses (ii) and (iii) above.
(10) Section 3.06 of the Pooling and Servicing Agreement is not
incorporated herein. The Sub-Servicer may invest funds in the Sub-Servicer
Custodial Account and any Servicing Account on the same terms as the Master
Servicer may invest funds in the Pool Custodial Account and any Servicing
Account, and subject to the same restrictions and obligations regarding maturity
dates, gains, losses, possession of Permitted Investments and Permitted
Investments payable on demand. Without limiting the generality of the foregoing,
(A) any investment of funds in the Sub-Servicer Custodial Account or a Servicing
Account shall be made in the name of the Trustee (in its capacity as such); (B)
the Sub-Servicer, on behalf of the Trustee for the benefit of the
Certificateholders, shall be the "entitlement holder", as such term is defined
in the UCC, of any Permitted Investment that is a "security entitlement", as
such term is defined in the UCC; (C) the Sub-Servicer, on behalf of the Trustee
for the benefit of the Certificateholders, shall maintain continuous possession
of any Permitted Investment in which a secured party may perfect its security
interest by possession under the UCC or any other applicable law; (D) the
Sub-Servicer, on behalf of the Trustee for the benefit of the
Certificateholders, shall maintain "control", as such term is defined in the
UCC, of any Permitted Investment in which a secured party may perfect its
security interest by "control" under the UCC and in which Sub-Servicer is not
required to maintain continuous possession pursuant to clause (C) above; (E)
possession of any Permitted Investment by the Sub-Servicer shall constitute
possession by a Person designated by, and acting on behalf of, the Trustee, as
secured party for purposes of the UCC; and (F) "control" of any Permitted
Investment by the Sub-Servicer shall constitute "control" by a Person designated
by, and acting on behalf of, the Trustee, as secured party for purposes of the
UCC.
(11) Section 3.07(a). References to the Pool Custodial Account
shall be references to the Sub-Servicer Custodial Account. All insurance
policies caused to be maintained by the Sub-Servicer hereunder shall also,
within thirty (30) days of execution, name the Master Servicer as additional
insured and loss payee in the following form: "Wachovia Bank, National
Association, as Master Servicer on behalf of ▇▇▇▇▇ Fargo Bank, N.A. as Trustee
for the benefit of the Certificateholders of COBALT CMBS Commercial Mortgage
Trust 2006-C1, Commercial Mortgage Pass-Through Certificates Series 2006-C1, ▇/▇
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Sub-Servicer, its successors and assigns "ATIMA".".
Within thirty (30) days after the Closing Date, the Sub-Servicer shall forward
to the Master Servicer, a fully completed certificate of insurance in the form
of Exhibit H attached hereto. Without limiting the generality of the obligations
of the Sub-Servicer hereunder, the Sub-Servicer shall monitor and, within thirty
(30) days after the end of each calendar quarter beginning with the quarter
ending March 31, 2007, certify on the status of insurance policies relating to
the Mortgage Loans, as required by, and in the form of, Exhibit E attached
hereto, pursuant to Section 3.01(c)(29) of this Agreement. The Sub-Servicer
shall promptly notify the Master Servicer of any Mortgaged Property that is not
insured against terrorist or other similar acts.
(12) Section 3.07(b). References to the Pool Custodial Account
shall be references to the Sub-Servicer Custodial Account.
Section 3.07(c). The fidelity bond and insurance policies
required hereunder shall also, within thirty (30) days of execution, name the
Master Servicer as additional insured and loss payee in the following form:
"Wachovia Bank, National Association, as Master Servicer on behalf of ▇▇▇▇▇
Fargo Bank, N.A. as Trustee for the benefit of the Certificateholders of COBALT
CMBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates Series 2006-C1, ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Sub-Servicer, its successors
and assigns "ATIMA"." The last paragraph of Section 3.07(c) shall be applicable
to the Sub-Servicer without the References Modification.
(14) Section 3.08. For so long as the Sub-Servicer is an
Affiliate of the Special Servicer, and subject to Section 3.01(c)(24) of this
Agreement. Section 3.08(a) of the Pooling and Servicing Agreement shall be
incorporated herein with the References Modification and the Sub-Servicer shall
perform the obligations of the Master Servicer under such Section 3.08 of the
Pooling and Servicing Agreement, subject to all requirements and restrictions
set forth in Section 3.08 and shall be entitled to related fees as described in
Section 3.01(c)(17) of this Agreement; provided, however, that the Sub-Servicer
shall copy the Master Servicer on all correspondence to the Special Servicer and
Mortgagor regarding such matters and the Sub-Servicer shall prepare any package
and analysis necessary to obtain any required Rating Agency no-downgrade
confirmation and shall deal with the Rating Agencies to obtain such
confirmation. Notwithstanding the foregoing, in the event that the Sub-Servicer
is no longer an Affiliate of the Special Servicer, (i) references to the Master
Servicer shall not be deemed references to the Sub-Servicer for purposes of
Sections 3.08(a) and (b) of the Pooling and Servicing Agreement; (ii) the
Sub-Servicer will not permit an assumption of a Mortgage Loan or a transfer of
an interest in the Mortgagor or waive any restrictions contained in the related
Mortgage on transfer of an interest in the related Mortgaged Property or
Mortgagor or on subordinate financing; (iii) the Sub-Servicer shall forward all
assumption or transfer of interest requests or subordinate financing requests to
the Master Servicer for processing and shall obtain and provide to the Master
Servicer information necessary for the analysis of such request; (iv) the
Sub-Servicer shall make a recommendation to the Master Servicer with respect to
such request and (iv) with respect to any assumption fees, application fees and
other fees or charges in connection with an assumption or transfer of interest
request or subordinate financing request payable to the Master Servicer pursuant
to the Pooling and Servicing Agreement, such amounts shall be paid 50% to the
Master Servicer and 50% to the Sub-Servicer.
(15) Section 3.09. References to the Master Servicer shall not
be deemed references to the Sub-Servicer for purposes of Section 3.09 of the
Pooling and Servicing Agreement. In addition to the CMSA Delinquent Loan Status
Report required by Section 3.01(c)(21) of this Agreement, on the 18th day, the
25th day, and the last Business Day of each month (commencing in January 2007),
the Sub-Servicer shall provide to the Master Servicer and the Special Servicer a
CMSA Delinquent Loan Status Report, provided that the information set forth in
such report shall be as of the close of business on the Business Day immediately
preceding the delivery of such report.
(16) Section 3.10. The references to the Custodial Account in
the second parenthetical of Section 3.10(a) of the Pooling and Servicing
Agreement shall be references to the Sub-Servicer Custodial Account. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Sub-Servicer Custodial Account.
(17) Section 3.11(a). References to the Master Servicing Fee
shall be references to the Sub-Servicing Fee, and references to the Master
Servicing Fee Rate shall be references to the Sub-Servicing Fee Rate. All
references to the Custodial Account shall be references to the Sub-Servicer
Custodial Account. Any late payment or other fees (including Penalty Interest)
paid in respect of a delinquent loan to which the Master Servicer is entitled
under the Pooling and Servicing Agreement (other than as payment of interest on
Advances or other reimbursement of Additional Trust Fund Expenses) shall be
divided equally between the Sub-Servicer and the Master Servicer if the
Sub-Servicer participates in the realization upon such delinquent loan, and
shall otherwise be paid to the Master Servicer. The Sub-Servicer shall not be
entitled to (a) Prepayment Interest Excesses or (b) except as provided in the
next sentence or in Section 3.01(d) of this Agreement, any modification fees or
assumption fees, application fees or other fees or charges in connection with an
assumption request, modification request or other borrower request, collected
with respect to the Mortgage Loans. Notwithstanding the foregoing, so long as
the Sub-Servicer is an Affiliate of the Special Servicer, the Sub-Servicer shall
be entitled to all assumption fees and assumption application fees collected
from a Mortgagor in connection with an assumption or transfer contemplated by
Section 3.08(a) of the Pooling and Servicing Agreement and any fees in
connection with a Tenants-In-Common Loan contemplated by Section 3.08(a) of the
Pooling and Servicing Agreement to which the Master Servicer is entitled under
the Pooling and Servicing Agreement.
(18) Section 3.11(b). References to the Special Servicer shall
remain references to the Special Servicer.
(19) Section 3.11(c). References to the Master Servicer shall
not be deemed to be references to the Sub-Servicer for purposes of Section
3.11(c) of the Pooling and Servicing Agreement. Any such fees referred to in
Section 3.11(c) of the Pooling and Servicing Agreement recovered by the
Sub-Servicer shall be paid by the Sub-Servicer to the Master Servicer for
distribution in accordance with the Pooling and Servicing Agreement.
(20) Section 3.13(a) and (b). The Sub-Servicer shall promptly
(but in no event later than thirty (30) days after receipt of the related
inspection report or collection, as applicable) forward to the Master Servicer a
copy of all inspection reports prepared by the Sub-Servicer and all operating
statements and rent rolls collected by the Sub-Servicer. The Sub-Servicer may
engage a third party at its cost to perform property inspections and prepare
property inspection reports without first obtaining the consent of the Master
Servicer; provided, however, that the Sub-Servicer shall remain obligated and
primarily liable to the Master Servicer for satisfactory completion of the
inspections and reports in a manner consistent with the Servicing Standard and
otherwise as required by this Agreement. The Sub-Servicer shall promptly forward
each CMSA NOI Adjustment Worksheet prepared in accordance with the requirements
of the Pooling and Servicing Agreement to the Master Servicer within twenty (20)
days after receipt of the related borrower reports and each CMSA Operating
Statement Analysis Report to the Master Servicer within twenty (20) days after
receipt of a quarterly operating statement.
(21) Section 3.13(d) is not incorporated herein. The
Sub-Servicer shall deliver to the Master Servicer, no later than 1:00 p.m. New
York City time on the second Business Day preceding the Determination Date, by
electronic transmission in the format designated by the Master Servicer, the
CMSA Property File and the CMSA Comparative Financial Status Report, each
providing the required information as of the end of the preceding calendar
month. The Sub-Servicer shall deliver to the Master Servicer and the Special
Servicer, no later than 1:00 p.m. New York City time on the first Business Day
following the Determination Date, by electronic transmission in the format
designated by the Master Servicer, a CMSA Historical Liquidation Report, a CMSA
Loan Periodic Update File, a CMSA Financial File, a CMSA Loan Level Reserve/LOC
Report, a CMSA Advance Recovery Report, a CMSA Delinquent Loan Status Report and
a CMSA Servicer Watchlist, each providing the required information as of such
Determination Date. The Sub-Servicer shall deliver to the Master Servicer and
the Special Servicer, no later than 1:00 pm New York City time on the first
Business Day of each calendar month, by electronic transmission in the format
designated by the Master Servicer, a CMSA Delinquent Loan Status Report,
providing required information as of the last Business Day of the preceding
calendar month. At the request of the Master Servicer, the Sub-Servicer shall
send to each Mortgagor a notice directing the Mortgagor to forward to the
Special Servicer annual, quarterly and monthly operating statements, budgets and
rent rolls of the related Mortgaged Property, and financial statements of the
related Mortgagor in accordance with and as provided for in the underlying loan
documents.
(22) Section 3.16. The second paragraph of Section 3.16 of the
Pooling and Servicing Agreement is not incorporated herein.
(23) Section 3.20(a), (b), (c) and (d). References in Section
3.20(a) to the Master Servicer Remittance Date shall be references to the
Sub-Servicer Remittance Date. The Sub-Servicer shall inform the ground lessor
that any notices of default under the related Ground Lease should thereafter be
forwarded to the Sub-Servicer and the Sub-Servicer shall promptly forward copies
of any such notices received to the Master Servicer. The Sub-Servicer shall also
inform the hospitality franchisor that any notices of default under the related
franchise agreement should thereafter be forwarded to the Sub-Servicer and the
Sub-Servicer shall promptly forward copies of any such notices received to the
Master Servicer.
(24) Section 3.21. The Sub-Servicer shall be permitted to
approve any transaction that the Master Servicer may approve without the consent
of the Special Servicer under Section 3.21 of the Pooling and Servicing
Agreement, subject to the limitations set forth in Section 3.28; provided that
in the event that the Sub-Servicer in the good faith and reasonable judgment of
the Master Servicer violates the Servicing Standard or otherwise commits an
"Event of Default" under the Pooling and Servicing Agreement in connection with
the granting or withholding of any such approval (including, without limitation,
any approvals set forth in Section 3.08 of the Pooling and Servicing Agreement,
the approval and processing of any defeasance and any approvals described in
Section 3.01(d) of this Agreement), the Sub-Servicer thereafter shall no longer
be permitted to exercise the foregoing approval rights and shall thereafter be
required to seek the approval of the Master Servicer. The Sub-Servicer in
processing each of these transactions will be required to apprise the Master
Servicer from time to time of its actions and shall schedule monthly conference
calls with the Master Servicer to discuss any of the aforementioned transactions
that it is processing. The Sub-Servicer shall provide all reasonable cooperation
to the Master Servicer in connection with the Master Servicer's duties under the
Pooling and Servicing Agreement to oversee sub-servicers. Such cooperation shall
include (without limitation) notifying the Master Servicer of any such
transaction, and the Sub-Servicer shall make itself available for
teleconferences from time to time upon reasonable request of the Master Servicer
in connection therewith. Immediately following the completion of each
transaction, the Sub-Servicer shall send the Master Servicer copies of all of
the evaluation and approval documentation created in connection with such
transaction. Notwithstanding anything contained in this Agreement to the
contrary and with respect to any action to be taken by the Sub-Servicer
hereunder which requires the consent of the Special Servicer and/or the
Controlling Class Representative pursuant to the Pooling and Servicing
Agreement, so long as the Sub-Servicer is an Affiliate of the Special Servicer,
the Sub-Servicer shall be permitted to seek directly the consent and/or approval
of the Special Servicer and/or the Controlling Class Representative, as
applicable. The Sub-Servicer shall provide the Master Servicer written notice of
any such action referenced in the immediately preceding sentence.
Notwithstanding anything herein or in the Pooling and Servicing
Agreement to the contrary, the Sub-Servicer shall be entitled to make any
determination, without the consent of the Master Servicer, to grant or withhold
approval of any defeasance of any related Mortgage Loan in whole or in part,
shall be entitled to process such defeasance and shall be entitled to the
entirety of any fees payable in connection with such defeasance.
(25) Section 3.22(a). The Sub-Servicer shall promptly notify
the Master Servicer of any event or circumstance that the Sub-Servicer deems to
constitute a Servicing Transfer Event with respect to any Mortgage Loan. The
determination as to whether a Servicing Transfer Event has occurred shall be
made by the Master Servicer. The Master Servicer shall promptly notify the
Sub-Servicer of any determination that a Servicing Transfer Event with respect
to any Mortgage Loan has occurred. Upon receipt by the Master Servicer of notice
from the Special Servicer that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, the Master Servicer shall promptly give the
Sub-Servicer notice thereof and the obligation of the Sub-Servicer to service
and administer such Mortgage Loan shall resume.
(26) Sections 3.22(b) and (c) of the Pooling and Servicing
Agreement are not incorporated herein. The Sub-Servicer shall give prompt notice
to the Master Servicer of any Servicing Transfer Event and shall continue to
process payments and maintain ongoing payment records with respect to each
Mortgage Loan that becomes a Specially Serviced Mortgage Loan or an REO Property
and shall timely provide the Master Servicer and the Special Servicer with any
information required by either to perform their respective duties under the
Pooling and Servicing Agreement.
(27) Section 3.23. References to the Master Servicer shall not
be deemed to be references to the Sub-Servicer for purposes of Section 3.23 of
the Pooling and Servicing Agreement. Each provision of Section 3.23 of the
Pooling and Servicing Agreement shall be enforceable against the Sub-Servicer in
accordance with the terms thereof.
(28) Section 3.24. Section 3.24(a)(i) of the Pooling and
Servicing Agreement shall be deemed modified to read "The Sub-Servicer is a
limited liability company, validly existing and in good standing under the laws
of Massachusetts, and the Sub-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." Each insurance policy and
fidelity bond referenced in Section 3.07(c) of the Pooling and Servicing
Agreement names any successor or assign of the Sub-Servicer as an additional
insured and loss payee. The Sub-Servicer is authorized to transact business in
each state in which a Mortgaged Property is located, if and to the extent
required by applicable law. The Sub-Servicer has a net worth, determined in
accordance with generally accepted accounting principles, of at least
$5,000,000. The Sub-Servicer is an approved conventional seller/servicer of
mortgage loans for FHLMC or ▇▇▇▇▇▇ ▇▇▇ or a HUD-Approved Servicer. The
Sub-Servicer is not a Prohibited Party.
(29) Section 4.02(b) is not incorporated herein. The
Sub-Servicer shall deliver to the Master Servicer and the Special Servicer by
electronic transmission (in a format designated by the Master Servicer) (a) not
later than 1:00 p.m. New York City time on the first Business Day following each
Determination Date, the Collection Report (the information therein to be stated
as of the Determination Date) and (b) within thirty (30) days after the end of
each calendar quarter, beginning with the quarter ending March 31, 2007, the
certification on the Mortgage Loans, including without limitation information
regarding UCC Financing Statements, taxes, insurance premiums and ground rents,
required by and in the form of Exhibit E attached hereto. The Sub-Servicer shall
deliver to the Master Servicer no later than 1:00 pm New York City time on the
second Business Day of each month by electronic transmission in a format
designated by the Master Servicer, a remittance report containing scheduled
balance information for each Mortgage Loan reflecting the scheduled Periodic
Payment for such month in the form of Exhibit G attached hereto. In addition, on
each day that the Sub-Servicer forwards to the Master Servicer any funds
pursuant to Section 3.01(c)(7) of this Agreement, the Sub-Servicer shall deliver
to the Master Servicer by electronic transmission in a format designated by the
Master Servicer, a report of the nature of such remittance in the form of
Exhibit G attached hereto. The Sub-Servicer shall also prepare and deliver to
the Master Servicer and Special Servicer not later than 1:00 p.m. New York City
time on the first Business Day following each Determination Date, a
certification in the form of Exhibit J attached hereto.
(30) Section 4.03 of the Pooling and Servicing Agreement is not
incorporated herein. The Sub-Servicer shall have no obligation to make P&I
Advances.
(31) Section 11.01. The Sub-Servicer shall reasonably cooperate
with the Master Servicer and/or the Depositor in connection with their
compliance with Regulation AB.
(32) Section 11.02.
(33) Section 11.03 of the Pooling and Servicing Agreement is
not incorporated herein. The Sub-Servicer shall provide all reasonable
assistance to the Master Servicer to enable it to comply with Section 11.03 of
the Pooling and Servicing Agreement.
(34) Section 11.04. The Sub-Servicer shall provide all
reasonable cooperation to the Master Servicer to enable the Master Servicer to
fulfill all of the obligations of the Master Servicer under Section 11.04 of the
Pooling and Servicing Agreement (including, without limitation, the preparation
or the Additional Form 10-D Disclosure and the Additional Disclosure
Notification). Any Additional Form 10-D Disclosure and related Additional
Disclosure Notification required to be delivered by the Sub-Servicer shall be
delivered to the Master Servicer, in addition to the Depositor and the Trustee,
within the time provided in Section 11.04(a).
(35) Section 11.05. The Sub-Servicer shall provide all the
reports required of a Sub-Servicer under Section 11.05 of the Pooling and
Servicing Agreement. The Sub-Servicer shall provide all reasonable cooperation
to enable the Master Servicer to provide any Additional Form 10-K Disclosure.
Any Additional Form 10-K Disclosure and related Additional Disclosure
Notification required to be delivered by the Sub-Servicer shall be delivered to
the Master Servicer, in addition to the Depositor and the Trustee, within the
time provided in Section 11.05(a).
(36) Section 11.06. The Sub-Servicer shall provide all
reasonable cooperation to the Master Servicer to enable the Master Servicer to
fulfill its obligations under Section 11.06 of the Pooling and Servicing
Agreement including provision of all of the reports and information required of
a Reporting Party to the Master Servicer whether or not it meets the criteria
set forth in the definition thereof in the Pooling and Servicing Agreement no
later than 5 Business Days prior to the date on which the Master Servicer must
provide such information to the Trust. At least 5 Business Days before the day
the Master Servicer is required to deliver its certification under Section 11.06
of the Pooling and Servicing Agreement, the Sub-Servicer shall provide a backup
certificate substantially similar to any certification required to be delivered
by the Master Servicer pursuant to Section 11.06 of the Pooling and Servicing
Agreement and shall provide such information and assistance as may be reasonably
required and shall cooperate with the Master Servicer in complying with Section
11.06 of the Pooling and Servicing Agreement. The Sub-Servicer shall perform all
of the obligations required of a Servicing Function Participant and/or an
Additional Servicer and/or Reporting Servicer under Section 11.06 of the Pooling
and Servicing Agreement, except that to the extent it would not constitute
either such party for purposes of the Pooling and Servicing Agreement, it shall
only be required to deliver any such items to the Master Servicer. The
Sub-Servicer represents and warrants that each certification delivered pursuant
to this Section 3.01(c)(36) will be true, complete and correct. In addition, the
Sub-Servicer shall cooperate with Master Servicer's reasonable requests in
performing its due diligence for its certification under Section 11.06 of the
Pooling and Servicing Agreement. The Sub-Servicer shall indemnify and hold
harmless the Master Servicer for all losses, liabilities, claims, damages, costs
and expenses (including, without limitation, legal costs, fees and expenses)
resulting from a breach of, or mistake or omission in, any certification given
pursuant to this Section 3.01(c)(36). If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Master Servicer, then the
Sub-Servicer agrees that it shall contribute to the amount paid or payable by
the Master Servicer as a result of the losses, claims, damages or liabilities of
the Master Servicer in such proportion as is appropriate to reflect the relative
fault of the Master Servicer on the one hand and the Sub-Servicer on the other
in connection with a breach of the Sub-Servicer obligations under this Section
3.01(c)(36) or the Sub-Servicer's negligence, bad faith or willful misconduct in
connection therewith.
(37) Section 11.07. The Sub-Servicer shall promptly notify the
Master Servicer to the extent that it becomes aware of any Reportable Event. The
Sub-Servicer shall provide all reasonable cooperation to the Master Servicer for
the Master Servicer to fulfill its obligations under Section 11.07 of the
Pooling and Servicing Agreement (including without limitation, the preparation
of Form 8-K Disclosure Information and consultation with the Master Servicer
with respect to any Reportable Event). The Sub-Servicer shall notify the parties
to the Pooling and Servicing Agreement of any Reportable Event in the time frame
set forth in Section 11.07 of the Pooling and Servicing Agreement.
(38) Sections 11.09 and 11.10. The reports set forth in
Sections 11.09 and 11.10 of the Pooling and Servicing Agreement shall be
delivered by the Sub-Servicer by March 1st (subject to a grace period no later
than March 10th) of each year, beginning March 2007. If the Sub-Servicer is a
Servicing Function Participant or Additional Servicer, such reports shall be
delivered to the Master Servicer and all the parties specified in Sections 11.09
and 11.10 of the Pooling and Servicing Agreement, and if the Sub-Servicer is not
a Servicing Function Participant or Additional Servicer, such report shall be
delivered only to the Master Servicer.
(39) Section 11.11. The accountant's report referenced in
Section 11.11 of the Pooling and Servicing Agreement shall be delivered by the
Sub-Servicer (without regarding whether the Sub-Servicer is a Servicing Function
Participant) by March 1st (subject to a grace period no later than March 10th )
of each year, beginning March 2007. If the Sub-Servicer is a Servicing Function
Participant, the report shall be delivered to the Master Servicer and all the
parties specified in Section 11.11 of the Pooling and Servicing Agreement, and
if the Sub-Servicer is not a Servicing Function Participant, such report shall
be delivered only to the Master Servicer.
(40) Section 11.12. The Sub-Servicer shall indemnify and hold
harmless each Certification Party and the Master Servicer 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 or the Master Servicer arising out of (i) a
breach of its obligations to provide any of the annual compliance statements or
annual servicing criteria compliance reports or attestation reports pursuant to
this Agreement or Article XI of the Pooling and Servicing Agreement as
incorporated herein, (ii) an actual breach by the Sub-Servicer or any other of
its obligations under Article XI of the Pooling and Servicing Agreement as
incorporated herein, (iii) negligence, bad faith or willful misconduct on its
part in the performance of such obligations or (iv) any failure by the
Sub-Servicer to identify a Servicing Function Participant retained by it
pursuant to Section 11.02(c) of the Pooling and Servicing Agreement.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party or the Master Servicer,
then the Sub-Servicer shall contribute to the amount paid or payable to the
Certification Party or the Master Servicer as a result of the losses, claims,
damages or liabilities of the Certification Party or the Master Servicer, as
applicable, in such proportion as is appropriate to reflect the relative fault
of the Certification Party or the Master Servicer, as applicable, on the one
hand and the Sub-Servicer on the other in connection with a breach of the
Sub-Servicer's obligations pursuant to Article XI of the Pooling and Servicing
Agreement as incorporated herein or the Sub-Servicer's negligence, bad faith or
willful misconduct in connection therewith.
(d) Notwithstanding anything contained in this Agreement to the
contrary but subject to Section 3.01(c)(24) of this Agreement, and with respect
to any action to be taken by the Sub-Servicer hereunder which (x) requires the
consent of the Master Servicer pursuant to this Agreement and (y) requires the
consent of the Special Servicer and/or the Controlling Class Representative
pursuant to the Pooling and Servicing Agreement, so long as the Sub-Servicer is
an Affiliate of the Special Servicer, the Sub-Servicer shall be permitted to
seek directly the consent and/or approval of the Special Servicer and/or the
Controlling Class Representative, as applicable without first seeking the
consent and/or approval of the Master Servicer and the Sub-Servicer shall be
entitled to all related fees that otherwise would have been payable to the
Master Servicer in connection with obtaining such consent and/or approval. The
Sub-Servicer shall provide the Master Servicer written notice of any such action
referenced in the immediately preceding sentence.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a limited liability company under the laws of the state of its
organization except as permitted herein, and shall obtain and preserve its
qualification to do business as a foreign limited liability company in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement or any of the Mortgage Loans and
to perform its duties under this Agreement.
Any Person into which the Sub-Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Sub-Servicer shall be a party, or any Person
succeeding to the business of the Sub-Servicer, shall be the successor of the
Sub-Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person (a) shall assume in writing the obligations of the Sub-Servicer under
this Agreement and (b) must be acceptable to the Master Servicer (which
acceptance shall not be unreasonably withheld or delayed).
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or
agents of the Sub-Servicer shall be under any liability to the Master Servicer
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Sub-Servicer against liability to the
Master Servicer for any breach of a representation, warranty or covenant made
herein, or failure to perform its obligations in strict compliance with the
Servicing Standard, or any liability which would otherwise be imposed by reason
of any breach of the terms and conditions of this Agreement, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. The
Sub-Servicer and any officer, employee or agent of the Sub-Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The
Sub-Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its duties under this
Agreement and, unless it is specifically required hereunder to bear the costs of
such legal action, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Sub-Servicer may, with the consent of the
Master Servicer, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Master Servicer will be liable and the Sub-Servicer shall be entitled to be
reimbursed therefor from the Master Servicer upon written demand. The
Sub-Servicer shall be indemnified by the Master Servicer against any loss,
liability or reasonable expense incurred in connection with the performance by
the Sub-Servicer of the terms and conditions of this Agreement, other than any
loss, liability or expense; (i) specifically required to be borne by the
Sub-Servicer without right of reimbursement pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made herein; or (iii) incurred by reason of misfeasance, bad faith or negligence
in the performance of obligations or duties hereunder; provided, however, that
the Master Servicer's obligation to so indemnify the Sub-Servicer shall be
strictly limited to any actual amount of indemnification received by the Master
Servicer therefor under the Pooling and Servicing Agreement. The Master Servicer
shall pursue in good faith any rights that it has to any indemnity under the
Pooling and Servicing Agreement.
Section 3.04 Sub-Servicer Not to Resign.
The Sub-Servicer shall not resign from the obligations and duties
hereby imposed on it unless it determines that the Sub-Servicer's duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by it
(the other activities of the Sub-Servicer so causing such a conflict being of a
type and nature carried on by the Sub-Servicer at the date of this Agreement)
and provides 90 days advance notice thereof to the Master Servicer. Any such
determination permitting the resignation of the Sub-Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Master Servicer, which
Opinion of Counsel shall be in form and substance reasonably acceptable to the
Master Servicer.
Section 3.05 Transfer or Assignment of Servicing.
This Agreement and the rights and benefits hereunder of the
Sub-Servicer shall not be assignable, and the duties and obligations hereunder
of such party shall not be delegable; provided, however, that (i) the
Sub-Servicer may assign, sell or transfer its rights and duties under this
Agreement in whole and not in part to a parent company of Sub-Servicer or a
wholly-owned subsidiary or Affiliate of such party; (ii) the Sub-Servicer shall
be entitled to employ subcontractors to the extent provided in this Agreement
and (iii) the Sub-Servicer shall be entitled to assign, sell or transfer its
rights and duties under this Agreement (in whole and not in part) with approval
of the Master Servicer, such approval not to be unreasonably conditioned or
delayed. Any such assignment under this Section 3.05 shall (i) not be effective
(other than an assignment to a subcontractor described in clause (ii) above)
until the successor Sub-Servicer enters into a written agreement reasonably
satisfactory to the Master Servicer agreeing to be bound by the terms and
provisions of this Agreement (but not altering the obligations under this
Agreement); and (ii) not relieve the assigning Sub-Servicer of any duties or
liabilities arising or incurred prior to such assignment. The Sub-Servicer shall
pay or cause to be paid any costs or expenses incurred in connection with such
assignment. Any assignment or delegation or attempted assignment or delegation
in contravention of this Agreement shall be null and void.
Section 3.06 Indemnification.
The Master Servicer and the Sub-Servicer each agrees to and hereby
does indemnify and hold harmless the Master Servicer, in the case of the
Sub-Servicer, and the Sub-Servicer, in the case of the Master Servicer
(including any of their partners, directors, officers, employees or agents) from
and against any and all liability, claim, loss, out-of-pocket cost (including
reasonable attorneys' fees), penalty, expense or damage of the Master Servicer,
in the case of the Sub-Servicer, and the Sub-Servicer, in the case of the Master
Servicer (including any of their partners, directors, officers, employees or
agents) resulting from (i) any breach by the indemnitor of a representation,
warranty, covenant or agreement made by it herein or (ii) any willful
misfeasance, bad faith or negligence by the indemnitor in the performance of its
obligations or duties hereunder or by reason of reckless disregard of such
obligations and duties. Each indemnified party hereunder shall give prompt
written notice to the indemnitor of matters which may give rise to liability of
such indemnitor hereunder; provided, however, that failure to give such notice
shall not relieve the indemnitor of any liability except to the extent of actual
prejudice. This Section 3.06 shall survive the termination of this Agreement and
the termination or resignation of the Master Servicer or the Sub-Servicer.
Notwithstanding the foregoing, the Sub-Servicer shall not have any direct rights
of indemnification that may be satisfied out of assets of the Trust Fund.
Section 3.07 Subcontractors and Sub-servicers.
Without prior written notice to or the prior written consent of the
Master Servicer, the Sub-Servicer shall be permitted to employ, at its own
expense, subcontractors and sub-servicers to perform selected services (such as
the engagement of tax monitoring services, property inspections, etc.) in
connection with Sub-Servicer's performance of the Servicing for the Mortgage
Loans; provided, however, that (1) the Sub-Servicer shall remain fully liable at
all times for the timely performance of all Services and for all other
obligations hereunder (2) the terms of such an arrangement shall not be binding
upon the Master Servicer or any successor primary servicer or Sub-Servicer of
the Mortgage Loans; (3) no such arrangement shall obligate the Master Servicer
to communicate or deal with any Person under this Agreement other than the
Sub-Servicer; (4) no such arrangement shall result in the delegation by the
Sub-Servicer of its duty to make any recommendation for the granting or
withholding of any consent or waiver or the making of any other decision on the
part of the holder of any Mortgage Loan; and (5) such arrangements are
consistent with and meet all of the requirements of Section 3.23 of the Pooling
and Servicing Agreement, including, without limitation, that such agreement
shall (A) solely with respect to sub-servicers (and not subcontractors), require
the sub-servicer thereunder to perform all applicable requirements of Article XI
of the Pooling and Servicing Agreement, (B) be terminable by the Master Servicer
without cause and without a termination fee if the Sub-Servicer is no longer
acting in such capacity hereunder, (C) provide that the Master Servicer may have
access to such sub-servicer or subcontractor as provided in Section 3.16 of the
Pooling and Servicing Agreement and (D) solely with respect to sub-servicers
that are Servicing Function Participants, provide that the Master Servicer is a
third party beneficiary thereunder, and the Sub-Servicer shall provide the
Master Servicer with a copy of such agreement.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
In case one or more of the following events (each an "Event of
Default") by the Sub-Servicer shall occur and be continuing, that is to say:
(a) any failure by the Sub-Servicer to deposit into the Sub-Servicer
Custodial Account, any Servicing Account, any REO Account or any Reserve
Account, or to deposit into, or to remit to the Master Servicer for deposit
into, the Pool Custodial Account, on a timely basis, any amount required to be
so deposited or remitted under this Agreement which failure continues unremedied
for one (1) Business Day; or
(b) any failure on the part of the Sub-Servicer to observe or
perform its obligations and duties in strict accordance with Section 3.07 of the
Pooling and Servicing Agreement as incorporated herein pursuant to Sections
3.01(c)(11), (12) and (13) of this Agreement; or
(c) any failure on the part of the Sub-Servicer to (a) timely
provide to the Master Servicer the certification called for on Exhibit E
attached hereto as required by Section 3.01(c)(29) of this Agreement, or (b)
timely provide to the Master Servicer the Collection Report which failure
continues unremedied for one (1) Business Day; or
(d) any failure on the part of the Sub-Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Sub-Servicer contained in this Agreement which continues unremedied
for a period of twenty-five (25) days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Sub-Servicer by the Master Servicer; or
(e) any breach on the part of the Sub-Servicer of any representation
or warranty contained in Section 3.24 of the Pooling and Servicing Agreement
which materially and adversely affects the interests of the Master Servicer or
any Class of Certificateholders and which continues unremedied for a period of
thirty (30) days (in the case of payment of insurance premiums, fifteen (15)
days or the date on which any required insurance coverage terminates, if such
premiums are not paid, whichever date is earlier) after the date on which notice
of such breach, requiring the same to be remedied, shall have been given to the
Sub-Servicer by the Master Servicer, provided, however, that the Sub-Servicer
shall have an additional thirty (30) days to remedy such breach if the
Sub-Servicer is diligently pursuing the remedy of such breach and provides an
Officer's Certificate to such effect; or
(f) the Sub-Servicer shall fail to timely deliver to the Master
Servicer any Officer's Certificate as required by Section 3.01(c)(38) of this
Agreement, any annual accountants' report as required by Section 3.01(c)(39) of
this Agreement, or in any way fail to comply with Section 3.01(c)(31) through
Section 3.01(c)(37) of this Agreement which failure continues unremedied for a
period of thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Sub-Servicer by the Master Servicer (provided that such notice and cure period
with respect to this Section 4.01(f) shall only apply with respect to any year
that a report on Form 10-K is not required to be filed by the Trust Fund; in any
year that a report on Form 10-K is required to be filed by the Trust Fund, there
will be no notice and cure period with respect to this Section 4.01(f)); or
(g) 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 Sub-Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(h) the Sub-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 Sub-Servicer or of or
relating to all or substantially all of its property; or
(i) the Sub-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 limited liability company action in furtherance of the
foregoing; or
(j) the Sub-Servicer shall cease to be an approved servicer of
multifamily mortgage loans for at least one of FHLMC, FNMA or the Department of
Housing and Urban Development (HUD); or
(k) the Sub-Servicer shall assign or transfer or attempt to assign
or transfer all or part of its rights and obligations hereunder except as
permitted by this Agreement; or
(l) the net worth of the Sub-Servicer, determined in accordance with
generally accepted accounting principles shall decline to less than $5,000,000;
or
(m) S&P or Fitch has (i) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or (ii) placed one or
more Classes of Certificates on "watch status" in contemplation of rating
downgrade or withdrawal and, in the case of either of clauses (i) or (ii),
citing servicing concerns with the Sub-Servicer as the sole or material factor
in such rating action; or
(n) the Sub-Servicer shall be a Prohibited Party;
then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Master Servicer may terminate, by
notice in writing to the Sub-Servicer, all of the rights and obligations of the
Sub-Servicer as Sub-Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof. From and after the receipt by the Sub-Servicer
of such written notice, all authority and power of the Sub-Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer pursuant to and under this Section, and,
without limitation, the Master Servicer is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Sub-Servicer, 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 Sub-Servicer agrees that if it is terminated pursuant to this
Section, it shall promptly (and in any event no later than five (5) Business
Days subsequent to its receipt of the notice of termination) provide the Master
Servicer with all documents and records (including, without limitation, those in
electronic form) requested by it to enable it to assume the Sub-Servicer's
functions hereunder, and shall cooperate with the Master Servicer in effecting
the termination of the Sub-Servicer's responsibilities and rights hereunder and
the assumption by a successor of the Sub-Servicer's obligations hereunder,
including, without limitation, the transfer within one (1) Business Day to the
Master Servicer for administration by it of all cash amounts which shall at the
time be or should have been credited by the Sub-Servicer to the Sub-Servicer
Custodial Account, the Custodial Account, any Servicing Account, any REO Account
and any Reserve Account, or thereafter be received with respect to the Mortgage
Loans or any REO Property (provided, however, that the Sub-Servicer shall
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, and it and its directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 3.03 of this Agreement notwithstanding any such termination).
Notwithstanding anything to the contrary in the foregoing paragraph
or in this Agreement, to the extent that any Event of Default affects only
certain Mortgage Loans serviced by the Sub-Servicer under this Agreement which
default the Sub-Servicer cures prior to three days before the day on which such
default would become an Event of Default by the Master Servicer under the
Pooling and Servicing Agreement, then the Master Servicer may terminate the
rights and obligations of the Sub-Servicer only with respect to such Mortgage
Loans affected.
In addition to any other rights and remedies available to the Master
Servicer hereunder or at law or equity, including, without limitation, the right
to a recovery of damages, the Master Servicer may impose, and if so imposed, the
Sub-Servicer shall pay, the penalties described in this paragraph for (a) any
failure by the Sub-Servicer to deposit into any account required hereby, or to
deposit into, or to remit to the Master Servicer for deposit into, the Custodial
Account, on a timely basis, any amount required to be so deposited or remitted
under this Agreement, or (b) any failure by the Sub-Servicer to timely provide
to the Master Servicer any report required by this Agreement to be provided to
the Master Servicer (each such failure referred to herein as a "Sub-Servicer
Delinquency"). The Master Servicer may not impose any penalty for the first
Sub-Servicer Delinquency to occur hereunder ("Initial Sub-Servicer
Delinquency"), but may impose on the Sub-Servicer a penalty of $300.00 for any
other Sub-Servicer Delinquency occurring within two years following an Initial
Sub-Servicer Delinquency; provided, however, that if no Sub-Servicer Delinquency
occurs during any two (2) year period, the first Sub-Servicer Delinquency
thereafter shall be deemed to be an "Initial Sub-Servicer Delinquency". The
penalties provided for in this paragraph are not intended to constitute
liquidated damages. The rights and remedies of the Master Servicer under this
Agreement are cumulative with, and not exclusive of, any other rights or
remedies which it would otherwise have.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Sub-Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 4.03 Other Remedies of Master Servicer.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Master Servicer, in addition
to the rights specified in Section 4.01 of this Agreement, shall have the right,
in its own name, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies (including the institution and
prosecution of all judicial, administrative and other proceedings and the filing
of proofs of claim and debt in connection therewith). Except as otherwise
expressly provided in this Agreement, no remedy provided for by this Agreement
shall be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall be
deemed to be a waiver of any Event of Default.
ARTICLE V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights,
obligations and responsibilities of the Sub-Servicer shall terminate (without
payment of any penalty or termination fee): (i) upon the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and the disposition of all REO Property and the remittance of all
funds due hereunder; (ii) by mutual consent of the Sub-Servicer and the Master
Servicer in writing; (iii) pursuant to Section 5.02 of this Agreement; (iv) at
the option of any purchaser of one or more Mortgage Loans pursuant to the
Pooling and Servicing Agreement, upon such purchase and only with respect to
such purchased Mortgage Loan or Mortgage Loans; or (v) upon termination of the
Pooling and Servicing Agreement. Any successor to the Sub-Servicer shall make
reasonable arrangements as it may deem appropriate to reimburse the Sub-Servicer
for amounts the Sub-Servicer actually expended as Sub-Servicer pursuant to this
Agreement which the successor is entitled to retain and which otherwise would be
recovered by the Sub-Servicer pursuant to this Agreement but for the appointment
of such successor.
Section 5.02 Termination With Cause.
The Master Servicer may, at its sole option, terminate any rights
the Sub-Servicer may have hereunder with respect to any or all of the Mortgage
Loans as provided in Section 4.01 of this Agreement upon the occurrence of an
Event of Default.
Any notice of termination shall be in writing and delivered to the
Sub-Servicer as provided in Section 6.05 of this Agreement.
Section 5.03 Termination of Duties with Respect to Specially
Serviced Mortgage Loans.
At such time as any Mortgage Loan becomes a Specially Serviced
Mortgage Loan, the obligations and duties of the Sub-Servicer set forth herein
with respect to such Specially Serviced Mortgage Loan that are required to be
performed by the Special Servicer under the Pooling and Servicing Agreement
shall cease; provided, however, that the Sub-Servicer shall continue to be
entitled to the Sub-Servicing Fee. The Sub-Servicer shall continue to perform
all of its duties hereunder with respect to the Specially Serviced Mortgage
Loans that are not required to be performed by the Special Servicer pursuant to
the Pooling and Servicing Agreement. If a Specially Serviced Mortgage Loan
becomes a Corrected Mortgage Loan, the Sub-Servicer shall commence servicing
such Corrected Mortgage Loan pursuant to the terms of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Prior to termination of the Sub-Servicer's responsibilities and
duties under this Agreement pursuant to and in accordance with Section 3.04,
4.01, 5.01 or 5.02 of this Agreement, the Master Servicer shall (i) succeed to
and assume all of the Sub-Servicer's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor which satisfies
the criteria for a successor sub-servicer in Section 3.02 of this Agreement and
which shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Sub-Servicer under this Agreement accruing following the
termination of the Sub-Servicer's responsibilities, duties and liabilities under
this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall, upon the request of the Master Servicer,
make available its financial statements and other records relevant to the
performance of the Sub-Servicer's obligations hereunder.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. At the Master Servicer's option, the
closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree; or conducted in person, at such place as the parties shall
agree.
The closing shall be subject to the execution and delivery of the
Pooling and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following
documents:
(a) to be provided by the Sub-Servicer:
(1) this Agreement executed by the Sub-Servicer;
(2) an Officer's Certificate of the Sub-Servicer, dated the
Closing Date and in the form of Exhibit B hereto, including all attachments
thereto; and
(3) the account certifications in the form of Exhibit F
hereto required by Sections 3.01(c)(3), (5) and (6) of this Agreement, fully
completed; and
(b) to be provided by the Master Servicer:
(1) this Agreement executed by the Master Servicer; and
(2) the Mortgage Loan Schedule, with one copy to be attached to
each counterpart of this Agreement as Exhibit A hereto; and
(3) the Pooling and Servicing Agreement substantially in the
form of Exhibit C hereto.
Section 6.05 Notices.
All demands, notices, consents and communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered to the
following addresses:
(i) if to the Master Servicer:
Wachovia Bank, National Association
Commercial Real Estate Services
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇-▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (for overnight
mail only)
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Reference: COBALT CMBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through
Certificates Series 2006-C1
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
c/o Wachovia Bank Corporation
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: COBALT CMBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through
Certificates Series 2006-C1
(ii) if to the Sub-Servicer:
CWCapital LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
CWCapital LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction as to any Mortgage Loan shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law which prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good-faith, to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of New
York, except to the extent preempted by Federal Law.
Section 6.09 Protection of Confidential Information.
The Sub-Servicer shall keep confidential and shall not divulge to
any party other than the Master Servicer, the Depositor, the Special Servicer,
the Rating Agencies or the Trustee, without the Master Servicer's prior written
consent, any information pertaining to the Mortgage Loans or any borrower
thereunder, except to the extent that it is appropriate for the Sub-Servicer to
do so in working with legal counsel, auditors, taxing authorities or other
governmental agencies or in accordance with this Agreement. Notwithstanding the
foregoing, the Sub-Servicer may include information on the Mortgage Loans on an
aggregate basis in providing to other parties information on its entire
servicing portfolio.
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is
conveying, and the Sub-Servicer is receiving, only a contract for servicing the
Mortgage Loans. Accordingly, the parties hereby acknowledge that the Trustee
remains the sole and absolute beneficial owner of the Mortgage Loans and all
rights related thereto.
Section 6.11 Third Party Beneficiary.
The Trustee, for the benefit of the Certificateholders, and the
Depositor shall be a third party beneficiary under this Agreement, provided
that, except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer hereunder as contemplated by Section 6.12 of this
Agreement, none of the Depositor, the Trustee, the Trust Fund, any successor
Master Servicer, or any Certificateholder shall have any duties under this
Agreement or any liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Sub-Servicer and the Master Servicer and the respective
successors and assigns of the Sub-Servicer and the Master Servicer. This
Agreement shall not be assigned, pledged or hypothecated by the Sub-Servicer to
a third party except as otherwise specifically provided for herein. If the
Master Servicer shall for any reason no longer act in such capacity under the
Pooling and Servicing Agreement, the Trustee or its designee may 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 this Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied or terminated except
by a written agreement conforming to the provisions of Section 6.18 of this
Agreement. All prior negotiations or representations of the parties are merged
into this Agreement and shall have no force or effect unless expressly stated
herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Master Servicer each agree to execute and
deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the
Sub-Servicer and the Master Servicer. No amendment to the Pooling and Servicing
Agreement that purports to change the rights or obligations of the Sub-Servicer
hereunder shall be effective against the Sub-Servicer without the express
written consent of the Sub-Servicer. The Master Servicer shall deliver a copy of
any amendment to the Pooling and Servicing Agreement to the Sub-Servicer within
a reasonable period of time after the execution of such amendment.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Sub-Servicer and the Master Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the date first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CWCapital LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Assistant General Counsel
EXHIBIT A
---------
MORTGAGE LOAN SCHEDULE
Mortgage Sub-Servicing
Loan Number Property Name Fee Rate
--------------------------------------------------------------------------------
2 Continental Towers 0.02%
9 Timberlake and Glades Apartments Portfolio 0.02%
9.001 Timberlake Apartments
9.002 The Glades Apartments
11 Intergraph Corporate Campus 0.02%
14 Quality King - Ronkonkoma Portfolio 0.02%
14.001 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
14.002 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
14.003 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
15 International Plaza 0.02%
18 ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ 0.02%
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.02%
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇▇%
▇▇ ▇▇▇▇▇ ▇▇▇ Village 0.02%
31 Preferred Freezer 0.02%
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 0.02%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 0.02%
35 INS I & II 0.02%
37 Evergreen Marketplace 0.07%
41 Research Park Office Portfolio 0.02%
47 Twin Lakes 0.02%
49 Kandi Mall 0.02%
52 Ronler Corporate Center 0.02%
69 Wesco Self Storage 0.02%
72 Columbus Multifamily Portfolio 0.02%
72.001 Greystone at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇ at Maple Ridge
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.02%
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Apartments 0.02%
79 Young's Bay Plaza 0.07%
80 Youngstown Shopping Center 0.02%
82 JC Penney Outlet Store 0.02%
83 The Carnival Flea Market 0.02%
88 International Paper Distribution - Marianna, FL 0.02%
96 International Paper - Kentwood, MI 0.02%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇, ▇▇ 0.02%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.02%
103 USA Managed Care Building 0.02%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇, ▇▇ 0.02%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 0.02%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 0.02%
108 Concord Town Center Portfolio 0.02%
108.001 Concord Town Center
108.002 Anchor Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - Extra Space Self Storage 0.02%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇, ▇▇ 0.02%
113 Fieldcrest III Apartments 0.02%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ The Lake 0.02%
▇▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ Retail Center 0.02%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Center 0.02%
120 Harbor Towers 0.02%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 0.02%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 0.02%
123 Mission Towers 0.02%
124 The Fountains 0.02%
126 Value City Furniture 0.02%
131 Fieldcrest I Apartments 0.02%
132 Advance Auto Stores - Biltmore Portfolio 0.02%
132.001 Advance Auto - Fayetteville, NC
132.002 Advance Auto - Henderson, NC
132.003 Advance Auto - Wake Forest, NC
132.004 Advance Auto - Kinston, NC
139 350 Long Beach 0.02%
140 The Shoppes on ▇▇▇▇▇▇▇ Shopping Center 0.02%
141 Fieldcrest II Apartments 0.02%
▇▇▇ ▇▇▇▇ ▇▇▇▇ Shopping Center 0.02%
▇▇▇ ▇▇▇▇▇▇▇▇ Apartments 0.02%
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 0.02%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 0.02%
155 5396 School Road 0.02%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 0.02%
EXHIBIT B
---------
SUB-SERVICER'S OFFICER'S CERTIFICATE
I, ______________________________, hereby certify that I am the duly
elected [Senior Vice President] of CWCapital LLC, a limited liability
company organized under the laws of the Commonwealth of Massachusetts (the
"Sub-Servicer") and further as follows:
(i) Attached hereto as Exhibit 1 is a true, correct and complete
copy of the certificate of organization of the Sub-Servicer which is in
full force and effect on the date hereof and which has been in effect
without amendment, waiver, rescission or modification since
_______________________________.
(ii) Attached hereto as Exhibit 2 is a true, correct and complete
copy of the operating agreement of the Sub-Servicer which are in effect on
the date hereof and which have been in effect without amendment, waiver,
rescission or modification since ____________.
(iii) Attached hereto as Exhibit 3 is an original certificate of
good standing of the Sub-Servicer, issued within ten days of the date
hereof, and no event has occurred since the date thereof which would
impair such standing.
(iv) Attached hereto as Exhibit 4 is a true, correct and complete
copy of the resolutions of the [Board of Managers] of the Sub-Servicer
authorizing the Sub-Servicer to execute and deliver the Sub-Servicing
Agreement, dated as of December 1, 2006 (the "Sub-Servicing Agreement"),
by and between the Sub-Servicer and Wachovia Bank, National Association
and such resolutions are in effect on the date hereof and have been in
effect without amendment, waiver, rescission or modification since
_______________.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Sub-Servicer of or compliance by the Sub-Servicer with
the Sub-Servicing Agreement or the consummation of the transactions
contemplated by the Sub-Servicing Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions.
(vi) The execution and delivery of the Sub-Servicing Agreement by
the Sub-Servicer and the Sub-Servicer's performance and compliance with
the terms of the Sub-Servicing Agreement will not (A) violate the
Sub-Servicer's operating agreement, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C)
constitute a material default (or an event which, with notice or lapse of
time, or both, would constitute a material default) under, or result in a
breach of, any material contract, agreement or other instrument to which
the Sub-Servicer is a party or by which the Sub-Servicer is bound.
(vii) No litigation is pending or, to the Sub-Servicer's knowledge,
threatened against the Sub-Servicer that would, in the Sub-Servicer's good
faith and reasonable judgment, prohibit its entering into the
Sub-Servicing Agreement or materially and adversely affect the performance
by the Sub-Servicer of its obligations under the Sub-Servicing Agreement.
(viii) Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Sub-Servicer, signed the Sub-Servicing
Agreement and any other document delivered prior hereto or on the date
hereof in connection with the Sub-Servicing Agreement, was, at the
respective times of such signing and delivery, and is now, a duly elected
or appointed, qualified and acting officer or representative of the
Sub-Servicer, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
(ix) The Sub-Servicer is duly authorized to engage in the
transactions described and contemplated in the Sub-Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Sub-Servicer.
Dated: By__________________________________
Name:_______________________________
[Seal] Title: [Senior Vice President]
I, _______________________, an [Assistant] Secretary of
[Sub-Servicer], hereby certify that ___________________________ is the duly
elected, qualified and acting [Vice] President of the Sub-Servicer and that the
signature appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By__________________________________
Name:_______________________________
[Seal] Title: Assistant Secretary
EXHIBIT 5
to
Sub-Servicer's Officer's Certificate
Name Title Signature
---- ----- ---------
____________________________________
____________________________________
____________________________________
____________________________________
EXHIBIT C
---------
POOLING AND SERVICING AGREEMENT
EXHIBIT D
---------
[Reserved]
EXHIBIT E
---------
QUARTERLY SERVICING CERTIFICATION
Sub-Servicer: ________________
RE: Series________________
Pursuant to the Sub-Servicing Agreement(s) between Wachovia Bank, National
Association and the above referenced Sub-Servicer, we certify with respect to
each mortgage loan serviced by us for Wachovia Bank, National Association that
as of the quarter ending ____________________ except as otherwise noted below:
o All taxes, assessments and other governmental charges levied against the
mortgaged premises, ground rents payable with respect to the mortgaged
premises, if any, which would be delinquent if not paid, have been paid.
o All required insurance policies are in full force and effect on the
mortgaged premises in the form and amount and with the coverage required
by the loan documents.
o On all required insurance policies, the loss payee is in the name of
Wachovia Bank, National Association, as Master Servicer on behalf of ▇▇▇▇▇
Fargo Bank, N.A. as Trustee for the benefit of the Certificateholders of
COBALT CMBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates Series 2006-C1, ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
Sub-Servicer, its successors and assigns "ATIMA".
o All UCC Financing Statements have been renewed prior to expiration.
o All reserves are maintained and disbursed in accordance with the loan
documents and no expired reserves exist.
o All letters of credit are transferred to the Trust as beneficiary and are
properly renewed.
o Lockboxes are being serviced in accordance with loan documents.
EXCEPTIONS: ____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
____________________________ ________________________________
Servicing Officer Date
EXHIBIT F
---------
FORM OF ACCOUNT CERTIFICATION
Securitization: ________________________________________________________________
Sub-Servicer: __________________________________________________________________
_________ New Account ________ Change of Account
Information
Indicate purpose of account (check all that apply):
_________ Principal & Interest ________ Deposit Clearing
_________ Taxes & Insurance ________ Disbursement Clearing
_________ Reserves (non-interest ________ Suspense
bearing)
_________ Reserves (interest
bearing)
Account Number: ________________________________________________________________
Account Name: __________________________________________________________________
Depository Institution (and Branch):
Name: ____________________________________________________________________
Street: __________________________________________________________________
City, State, Zip: ________________________________________________________
Rating Agency: __________________ Rating: ________________________________
Please note that the name of the account must follow the guideline
specifications detailed in the applicable agreement.
Prepared by: ___________________________________________________________________
Signature: _____________________________________________________________________
Title: _________________________________________________________________________
Date: __________________________________________________________________________
Telephone: _____________________________ Fax: _________________________________
EXHIBIT G
---------
FORM OF
COLLECTION REPORT
Series _____
Month of ____________
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
Subservicers Scheduled
Master Services Loan Due Mtg Net Scheduled Schedule
Loan # # Date Rate Mtg Rate Beginning Balance P&I Amount
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
Totals 0.00 00.0
------------------- ------------------------------------- -------------- ---------------- ------------------ ------------------
(TABLE CONTINUED)
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
Master Services Scheduled Scheduled Scheduled Curtailed
Loan # Principal Payment Interest Payment Service Fee Curtailed Prepayment Prepayment Date
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
Totals 0.00 0.00 0.00 0.00
------------------- ------------------- ------------------ ------------------ --------------------- ---------------------
(TABLE CONTINUED)
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
Actual
Master Services Prepayment Interest Other Principal Principal Actual Net Actual
Loan # Excess/Short Adjustment Payment Interest Payment Service Fees
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
Totals 0.00 0.00 0.00 0.00
------------------- ------------------------- -------------------- ----------------- -------------------- ---------------
(TABLE CONTINUED)
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
Master Services Payment Loan
Loan # Late Charges Assumption Fees Additional Fees Status Distribution Amount
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
Totals 0.00 0.00 0.00 0.00
------------------- ---------------- --------------------- ------------------ ----------------- --------------------
(TABLE CONTINUED)
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
Master Services Scheduled Ending Actual Loan Bal As of Next Payment Total Reserve Bal As Of
Loan # Balance Distribution Date Due Prior Month End Date of Maturity
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
Totals 0.00 0.00 0.00
------------------- ----------------- --------------------------- ------------- ----------------------------- ----------------
Loan Status
A - payment not received but still in grace period
B - late payment but less than 1 month delinquent
O - Current
1 - One month delinquent
2 - Two months delinquent
3 - Three months delinquent
4 - Assumed Schedule Payment
5 - Prepaid in Full
6 - Specially Serviced
7 - in foreclosure
9 - REO
10 - DPO
11 - Modification
Prepared By
Approved By
EXHIBIT H
---------
FORM OF CERTIFICATE OF INSURANCE
Sub-Servicer: ______________________
RE: Series ______________
Pursuant to the Sub-Servicing Agreement(s) between Wachovia Bank, National
Association and [Sub-Servicer], based on [Sub-Servicer's] monitoring of the
insurance in accordance with the Servicing Standard, we certify with respect to
each Mortgage Loan serviced by us for Wachovia Bank, National Association that
all required insurance policies are in full force and effect on the mortgaged
premises in the form and amount and with the coverage required by the
Sub-Servicing Agreement(s).
_______________________________ ___________________________
Servicing Officer Date
EXHIBIT I
---------
[RESERVED]
EXHIBIT J
---------
MONTHLY SERVICING ACCOUNTS CERTIFICATION
Sub-Servicer: _______________________
RE: Series __________
Pursuant to the Sub-Servicing Agreement(s) between Wachovia Bank, National
Association and the above named Sub-Servicer, I certify with respect to each
transaction serviced by us, as noted above, for Wachovia Bank, National
Association that as of ________________ (Determination Date) all collection
accounts and servicing accounts have been properly reconciled and the
reconciliations have been reviewed and approved by Sub-Servicer's management,
except as otherwise noted below:
EXCEPTIONS: __________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
_______________________________ ____________________________________
Servicing Officer Date