EXHIBIT 99.6
MIDLAND LOAN SERVICES, INC.
Master Servicer
and
BANK OF AMERICA, N.A.,
Sub-Servicer
SUB-SERVICING AGREEMENT
Dated as of June 1, 2006
Deutsche Mortgage & Asset Receiving Corporation
Commercial Mortgage Pass-Through Certificates
Series 2006-C7
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 Letters of Credit..........................................
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's Resignation.................................
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 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 Regulation AB Readiness Certificate........................
Section 6.04 Closing....................................................
Section 6.05 Closing Documents..........................................
Section 6.06 Notices....................................................
Section 6.07 Severability Clause........................................
Section 6.08 Counterparts...............................................
Section 6.09 Governing Law..............................................
Section 6.10 Protection of Confidential Information.....................
Section 6.11 Intention of the Parties...................................
Section 6.12 Third Party Beneficiary....................................
Section 6.13 Successors and Assigns: Assignment of Agreement............
Section 6.14 Waivers....................................................
Section 6.15 Exhibits...................................................
Section 6.16 General Interpretive Principles............................
Section 6.17 Complete Agreement.........................................
Section 6.18 Further Agreement..........................................
Section 6.19 Amendments.................................................
EXHIBIT A MORTGAGE LOAN SCHEDULE.....................................
EXHIBIT B SUB-SERVICER'S OFFICER'S CERTIFICATE.......................
EXHIBIT C POOLING AND SERVICING AGREEMENT............................
EXHIBIT D FORM OF ADDITIONAL REPORTS.................................
EXHIBIT E FORM OF ACCOUNT CERTIFICATION..............................
EXHIBIT F FORM OF COLLECTION REPORT..................................
EXHIBIT G FORM OF CERTIFICATION......................................
EXHIBIT H FORM OF SEMI-ANNUAL SERVICER CERTIFICATION.................
This is a Sub-Servicing Agreement (the "Agreement"), dated as of
June 1, 2006, by and between MIDLAND LOAN SERVICES, INC., having an office at
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Master Servicer") and
BANK OF AMERICA, N.A., having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and its successors and assigns
(the "Sub-Servicer").
W I T N E S S E T H:
-------------------
WHEREAS, Deutsche Mortgage & Asset Receiving Corporation (the
"Depositor"), CWCapital Asset Management LLC (the "Special Servicer"), ▇▇▇▇▇
Fargo Bank, N.A. (the "Trustee") and the Master Servicer have entered into that
certain Pooling and Servicing Agreement dated as of June 1, 2006, as amended,
modified and restated from time to time (the "Poo1ing and Servicing Agreement"),
whereby the Master Servicer shall master service certain mortgage loans on
behalf of the Trustee;
WHEREAS, Section 3.01 of the Pooling and Servicing Agreement permits
the Master Servicer to enter into agreements with Sub-Servicers (as defined in
the Pooling and Servicing Agreement) for the sub-servicing of the Mortgage Loans
(as defined in the Pooling and Servicing Agreement); 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
(collectively, the "Mortgage Loans") on behalf of the Master Servicer; and
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:
"Available Distribution Amount": 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 of such date, (ii) 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, (iii) the aggregate of all other amounts received with respect to any
Mortgage Loan 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, (ii) reserve funds or (iii) any amounts that the Sub-Servicer is
entitled to retain as compensation pursuant to Section 3.12 of the Pooling and
Servicing Agreement as incorporated herein pursuant to Section 3.01(c)(23) and
(24) of this Agreement and (iv) the aggregate amounts deposited by the
Sub-Servicer in the Sub-Servicer Custodial Account as required pursuant to
Section 3.05(a) of the Pooling and Servicing Agreement and Section 3.01(c)(9) of
this Agreement, to the extent not previously remitted to the Master Servicer.
"Collection Report": The monthly reports prepared by the
Sub-Servicer setting forth, with respect to each Mortgage Loan serviced by the
Sub-Servicer and the most recently ended Collection Period prior to the due date
of such report, the information described on Exhibit F attached hereto.
"Mortgage Loans": As defined in the recitals hereto.
"Mortgage Loan Schedule": As defined in the recitals hereto.
"Sub-Servicer Custodial Account": The account established by the
Sub-Servicer pursuant to Section 3.01(c)(9) of this Agreement.
"Sub-Servicing Fee": With respect to the Mortgage Loans and any
related REO Loan, the fee payable to the Sub-Servicer pursuant to Section
3.01(c)(23) of this Agreement.
"Sub-Servicing Fee Rate": With respect to each Mortgage Loan, the
rate that corresponds to such Mortgage Loan set forth on Exhibit A attached
hereto under the heading "Sub-Servicing Fee Rate."
"Sub-Servicer Remittance Date": The second Business Day preceding
such Distribution Date.
"Sub-Servicer Reporting Date": 12:00 noon on the Determination Date.
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 (for each Mortgage Loan serviced by the
Sub-Servicer) any portion of the Servicing File (including without limitation,
any original letter of credit to the extent such letter of credit has been
delivered to the Sub-Servicer) 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.
Section 2.02 Letters of Credit.
Within twenty (20) days following the Closing Date, the Sub-Servicer
shall provide to the Master Servicer a certification executed by a duly
authorized officer of the Sub-Servicer, certifying to the Master Servicer as to
the original letters of credit held by the Sub-Servicer, to the extent such
letter of credit has been delivered to the Sub-Servicer, and identifying the
letters of credit, the amounts of the letters of credit and the Mortgage Loans
to which they relate, and provide a copy of any such letters of credit to the
Master Servicer.
Within sixty (60) days after the Closing Date, the Sub-Servicer
shall notify each provider of a Letter of Credit for any Mortgage Loan, and use
commercially reasonable efforts to provide the Master Servicer with evidence
thereof, that the Master Servicer, on behalf of the Trustee for the benefit of
the Certificateholders, shall be the beneficiary under each such Letter of
Credit.
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 pursuant to this Agreement on behalf of the
Master Servicer and the Trustee in the best interests of and for the benefit of
the Certificateholders in accordance with any and all applicable laws and the
terms of this Agreement, the Mortgage Loans and to the extent consistent with
the foregoing with the Servicing Standard under the Pooling and Servicing
Agreement. For the avoidance of doubt, the Sub-Servicer's obligations and rights
under this Agreement are expressly limited to the Mortgage Loans which are
sub-serviced by the Sub-Servicer as set forth in Exhibit A.
(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(b)
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 Fiscal Agent, 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 3.26 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, under
instruction from the Special Servicer or the Master Servicer, continue to
collect and apply payments (and provide notice to the Special Servicer of such
payments), deliver certain statements and documents requested by the Special
Servicer regarding information held by the Sub-Servicer and continue to
cooperate with the Special Servicer and the Master Servicer by providing
requested information regarding the servicing of all Mortgage Loans that are not
Specially Serviced Mortgage Loans. 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 3.01 and Section 3.26
of the Pooling and Servicing Agreement, as modified herein and to the Special
Servicer's right to service all 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 shall be deemed to be references
to the Master Servicer hereunder and references to the Master Servicer,
Servicing Function Participant, Additional Servicer or Sub-Servicer in the
Incorporated Sections 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 or subsections of the Pooling and
Servicing Agreement listed herein and only such sections or subsections, 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 (and to avoid any doubt, any modification is
limited to its specific terms and the section is otherwise fully incorporated
herein without limitation):
(1) Section 2.03(d). The Sub-Servicer shall promptly notify the
Master Servicer upon becoming aware of any Defect or any Breach of the
representations and warranties made by the related Mortgage Loan Seller in
connection (but only in connection) with those Mortgage Loans that the
Sub-Servicer is required to sub-service hereunder as set forth on Exhibit
A attached hereto.
(2) Sections 2.04(a) and (c). References to the Servicer shall be
deemed to be references to the Sub-Servicer except with respect to
2.04(a)(i). The Sub-Servicer represents and warrants that the Sub-Servicer
is a national banking association duly organized, validly existing and in
good standing under the laws of the United States of America, 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. The Sub-Servicer represents and warrants
that it 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 represents and warrants that it is an approved
servicer of mortgage loans for ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or a HUD-Approved
Servicer.
(3) Section 3.01(a) and (e). The Sub-Servicer shall take all
necessary action to continue all UCC Financing Statements (including all
in-lieu continuations, as applicable) in favor of the originator of each
Mortgage Loan or in favor of any assignee prior to the expiration of such
UCC Financing Statements.
(4) Section 3.01(c) and (d). References to the Master Servicer shall
not be deemed to be references to the Sub-Servicer for purposes of Section
3.01(c) and (d). Each and every one of the terms and conditions of Section
3.01(c) and (d) shall be enforceable against the Sub-Servicer in
accordance with the terms thereof and each requirement for a Sub-Servicing
Agreement set forth in 3.01(c) and (d)is hereby incorporated into the
Agreement. To the extent necessary for the Sub-Servicer to comply with
applicable laws, or if otherwise consented to by the Master Servicer, the
Sub-Servicer may enter into any sub-servicing agreement with another
subservicer that would permit such subservicer to perform any or all of
the Sub-Servicer's servicing responsibilities under this Agreement.
Notwithstanding any sub-servicing agreement, the Sub-Servicer shall remain
obligated and primarily liable to the Master Servicer for the servicing
and administering of the Mortgage Loans in accordance with the provisions
of this Agreement without diminution of such obligation or liability by
virtue of such subservicing agreement to the same extent and under the
same terms and conditions as if the Sub-Servicer were servicing the
Mortgage Loans alone.
(5) Sections 3.03.
(6) Section 3.04(b). The creation of any Escrow Account shall be
evidenced by a certification in the form of Exhibit E attached hereto and
a copy of such certification shall be furnished to the Master Servicer
upon the creation of and any transfer of the Escrow Account.
(7) Section 3.04(a) and (c). Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and report to the Master Servicer on a quarterly basis starting for the
quarter ending in September of 2006 on the 30th of the month following the
end of the calendar quarter the information on each Mortgage Loan it
services with respect to taxes, insurance premiums, assessments, ground
rents and other similar items as required by, and in the form of, Exhibit
D attached hereto.
(8) Section 3.05(a). The Sub-Servicer shall establish a custodial
account (the "Sub-Servicer Custodial Account"), meeting all of the
requirements of the Collection Account, and references to the Collection
Account shall be references to the Sub-Servicer Custodial Account. The
creation of the Sub-Servicer Custodial Account shall be evidenced by a
certification in the form of Exhibit E 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 last paragraph of
Section 3.05(a), the Master Servicer shall direct each Special Servicer to
make payment of amounts referenced therein directly to the Sub-Servicer
for deposit in the Sub-Servicer Custodial Account.
(9) Section 3.05(a). The Sub-Servicer shall only invest funds held
in the Sub-Servicer Custodial Account in Permitted Investments. The
Sub-Servicer shall give notice to the Master Servicer of the location of
the Sub-Servicer Custodial Account as of the Closing Date and of the new
location of the Sub-Servicer Custodial Account prior to any change
thereof.
(10) Section 3.05(d). References to the Collection Account shall be
references to the Sub-Servicer Custodial Account, references to the
Distribution Account shall be references to the Collection Account and
references to the 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. Eastern Standard Time on such
date. Each month, by 2:00 p.m. Eastern Standard Time on the first Business
Day after receipt of any Available Distribution Amount between the
Sub-Servicer Remittance Date and the Distribution Date, the Sub-Servicer
shall forward to the Master Servicer by wire transfer the Available
Distribution Amount for such date. Each month by 2:00 p.m. Eastern
Standard Time, on the first Business Day after receipt of any amounts
which constitute delinquent payments on the Mortgage Loans and any related
late fees or penalty 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)(23), (24) and (35) of this Agreement) 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 such amounts collected by the Sub-Servicer
and not previously remitted to the Master Servicer. Section 3.01(c)(25) of
this Agreement sets forth certain reporting requirements with respect to
such remittances. Subsection (i) of the third paragraph of Section 3.04(b)
of the Pooling and Servicing Agreement is not incorporated herein. If any
check or other form of payment received by the Sub-Servicer with respect
to the Mortgage Loans is returned for insufficient funds and the
Sub-Servicer has previously remitted cash in the amount of such payment to
the Master Servicer, the Master Servicer shall reimburse the Sub-Servicer
for such amount within five (5) Business Days after the Master Servicer
receives notification from the Sub-Servicer of such insufficient funds,
and the Sub-Servicer has provided the Master Servicer with any requested
information to identify such payment and sent a revised Collection Report
to reflect such returned check.
(11) Section 3.06. Section 3.06 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
Collection Account the amounts required to be so deposited pursuant
to the first paragraph of Section 3.05(d) of the Pooling and
Servicing Agreement and Section 3.01(c)(10) of this Agreement;
(ii) to pay to itself earned and unpaid Sub-Servicing Fees
(which are the fees payable as compensation to the Sub-Servicer) 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 payable from, and 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 additional servicing compensation in
accordance with Section 3.0l(c)(23) of this Agreement and Section
3.12(a) of the Pooling and Servicing Agreement, including interest
and investment income earned in respect of amounts held in its
Sub-Servicer Custodial Account as provided in Section 3.0l(c)(9) of
this Agreement, but only to the extent of the Net Investment
Earnings with respect to its Sub-Servicer Custodial Account for any
Collection Period;
(iv) to clear and terminate its 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) 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 basis when appropriate, in connection
with any withdrawal from its Sub-Servicer Custodial Account pursuant
to clauses (ii) and (iii) above.
(12) Sections 3.07(a) and (c) are not incorporated herein. The
Sub-Servicer may invest funds in its Sub-Servicer Custodial Account on the
same terms as the Master Servicer may invest funds in the Collection
Account, and subject to the same restrictions and obligations regarding
maturity dates, holding to 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 shall be made in the name of the
Trustee for the benefit of the Certificateholders (in its capacity as
such), and (B) the Master Servicer, on behalf of the Trustee, shall (i) be
the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that
is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.0l(c)(13), the terms "entitlement holder,"
"security entitlement," "control," "certificated security" and
"uncertificated security" shall have the meanings given such terms in
Article 8 of the UCC, and "control" of any Permitted Investment by the
Sub-Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee for purposes of Article 8 of the UCC.
(13) Section 3.07(b). References to the Collection Account shall be
references to the Sub-Servicer Custodial Account. References to the
Trustee shall be inapplicable to the Sub-Servicer. References to the
Special Servicer and the REO Account are inapplicable to the Sub-Servicer.
(14) Section 3.08(a). References to the Collection Account shall be
references to the Sub-Servicer Custodial Account. All insurance policies
caused to be maintained by the Sub-Servicer hereunder shall also name the
Master Servicer as loss payee; the Master Servicer shall designate in
writing to the Sub-Servicer how its name shall appear. The Sub-Servicer
may request the Master Servicer to pay the premiums for such insurance
policies if payments from the Borrower are insufficient, and the Master
Servicer shall make such premium payments as Servicing Advances pursuant
to Section 3.04(b) of the Pooling and Servicing Agreement. Without
limiting the generality of the obligations of the Sub-Servicer hereunder,
the Sub-Servicer shall monitor and report on a quarterly basis starting
for the quarter ending in September of 2006 on the 30th of the month
following the end of the calendar quarter on the status of insurance
policies and monitor the information relating to the Mortgage Loans as
required by, and in the form of, Exhibit D attached hereto, pursuant to
Section 3.01(c)(24) of this Agreement.
(15) Section 3.08(b). References to the Collection Account shall be
references to the Sub-Servicer Custodial Account.
(16) Sections 3.08(c) and (d). The fidelity bond and insurance
policies required hereunder shall also name the Master Servicer as loss
payee; the Master Servicer shall designate in writing to the Sub-Servicer
how its name shall appear. The Sub-Servicer shall provide a certificate of
insurance to the Master Servicer evidencing fidelity bond and insurance
coverage required hereunder on or before March 31 of each year, beginning
March 31, 2007. Notwithstanding the foregoing, so long as the long-term
unsecured debt obligations of the Sub-Servicer are rated not lower than
"A" by the Rating Agencies the Sub-Servicer may self-insure with respect
to either or both of the fidelity bond coverage and the errors and
omissions coverage required as described above, in which case it shall not
be required to maintain an insurance policy with respect to such coverage.
(17) Section 3.09. Section 3.09 is incorporated herein with the
following modifications. The Sub-Servicer shall forward an
assumption/transfer package to the Master Servicer, and the Sub-Servicer
shall not permit an assumption of the Mortgage Loans or subordinate
financing without the prior written consent of the Master Servicer. The
Master Servicer shall forward any such package that requires the consent
of the Special Servicer and/or the Rating Agencies promptly to the Special
Servicer, Controlling Class Representative and/or the Rating Agencies, as
the case may be, but in any event within ten (10) Business Days of its
initial receipt from the Sub-Servicer. The Master Servicer shall notify
the Sub-Servicer in writing if it determines that such assumption/transfer
documentation package is incomplete (and what items are needed to complete
the assumption/transfer documentation package) within five (5) Business
Days from its initial receipt of an assumption/transfer documentation
package relating to a Mortgage Loan not requiring Rating Agency,
Controlling Class Representative or Special Servicer's review, and as
promptly as reasonably possible if such assumption/transfer documentation
package relating to the Mortgage Loans requiring Rating Agency,
Controlling Class Representative or Special Servicer review is found by
the Rating Agencies, Controlling Class Representative and/or the Special
Servicer to be incomplete. The Sub-Servicer agrees to cooperate with the
Special Servicer, Controlling Class Representative and/or the Rating
Agencies, as the case may be, to provide to each of them, the information
that each of them may request pursuant to Section 3.09 of the Pooling and
Servicing Agreement in connection with their consent and/or review. The
Master Servicer shall notify the Sub-Servicer in writing of its decision
to consent (or withhold consent) to an assumption within fifteen (15)
Business Days from receipt of a complete assumption/transfer documentation
package from the Sub-Servicer on the Mortgage Loans not requiring Rating
Agency, Controlling Class Representative or Special Servicer review, and
as promptly as reasonably possible on the Mortgage Loans requiring Rating
Agency, Controlling Class Representative or Special Servicer review. Any
assumption fees, application fees and other fees or charges in connection
with an assumption or transfer of interest request shall be allocated 50%
to the Sub-Servicer and 50% to the Master Servicer to the extent the
Master Servicer is entitled to such fees or charges under the Pooling and
Servicing Agreement. For the avoidance of doubt, the Sub-Servicer will not
be required to prepare an assumption/transfer documentation package in
connection with any Specially Serviced Mortgage Loan unless the
Sub-Servicer shall be entitled to receive such fees with respect to the
related Mortgage Loan. References to the Trustee as Mortgagee of record
shall remain unchanged.
(18) Section 3.09(f). The Sub-Servicer shall take no action that
would cause the Trustee to initiate foreclosure proceedings, obtain title
to a Mortgaged Property by foreclosure, deed in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of
the Certificateholders, could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard,
be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the
meaning of CERCLA or any comparable law.
(19) Section 3.11. References to the Collection Account 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. The
Sub-Servicer shall promptly remit to the Master Servicer copies of all
written communications between it and the Trustee with respect to the
Mortgage Loans.
(20) Section 3.12(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.
Anything herein to the contrary notwithstanding, the Sub-Servicer shall be
paid the Sub-Servicing Fee at such times as, and only to the extent that,
the Master Servicer receives its Master Servicing Fee with respect to each
Mortgage Loan under the Pooling and Servicing Agreement.
(21) Section 3.12(a). All references to the Collection Accounts
shall be references to the Sub-Servicer Custodial Account and Escrow
Accounts maintained by the Sub-Servicer. Any late payment or other fees
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) shall be paid to the applicable Sub-Servicer. The
Sub-Servicer shall be entitled to 50% of any modification fees, assumption
fees, application fees, consent fees or other fees or charges that the
Master Servicer is entitled to in connection with an assumption,
modification or consent request, collected with respect to the Mortgage
Loans to the extent that the Master Servicer is entitled to such fees or
charges under the Pooling and Servicing Agreement.
(22) Section 3.12(b). To the extent the amounts described in
subsection (iv) of Section 3.12(b) of the Pooling and Servicing Agreement
are collected by the Sub-Servicer, the Sub-Servicer shall promptly pay
such amounts to the Master Servicer.
(23) Section 3.12. As to Section 3.12(a), the Sub-Servicer shall
promptly (but in no event later than fifteen (15) days after the related
inspection or collection, as applicable) forward to the Master Servicer an
electronic copy of all inspection reports received by the Sub-Servicer
including digital copies of any photographs included therein and all
operating statements and rent rolls collected by the Sub-Servicer. The
Sub-Servicer in connection with the reports that it prepares in connection
with Section 3.19 of the Pooling and Servicing Agreement will afford the
Master Servicer reasonable cooperation by providing such information as
the Master Servicer may request in connection with the Master Servicer's
responsibilities in Section 3.19 of the Pooling and Servicing Agreement.
(24) Section 3.13. As to Section 3.13(c), the Sub-Servicer shall
deliver to the Master Servicer by electronic transmission in a format
designated by the Master Servicer (with a hard copy upon request and not
later than the Business Day following such request):
a. not later than 1:00 p.m. Eastern Standard Time on the
Sub-Servicer Reporting Date, the Collection Report, the CMSA
Property File and the CMSA Delinquent Loan Status Report, the CMSA
Comparative Financial Statement Report, the CMSA Servicer Watch List
Report, the CMSA Loan Level Reserve-LOC Report, the CMSA Financial
File, each providing the required information as of the related
Determination Date;
b. not later than 1:00 p.m., Eastern Standard Time on the
Sub-Servicer Reporting Date in July (for the months of January
through June) and January (for the months of July through December)
of each year, the information on the Mortgage Loans, including
without limitation information regarding UCC Financing Statements,
taxes, insurance premiums and ground rents, on a semi-annual basis
starting for the period ending in December 2006, in the form of
Exhibit H attached hereto.
As to Section 3.13(d), the Sub-Servicer shall prepare the CMSA
Operating Statement and Analysis Report and the CMSA NOI Adjustment
Worksheet in Microsoft Excel format and deliver them electronically to the
Master Servicer.
The Sub-Servicer shall reasonably cooperate with the Master Servicer
in providing information needed to establish the CMSA Loan Set-up File.
Additionally, within thirty (30) days of the Closing Date on a
quarterly basis starting for the quarter ending in September of 2006 on
the 30th of the month following the end of the calendar quarter, the
Sub-Servicer shall provide to the Master Servicer all information and
reports set forth in Exhibit D in connection with the Mortgage Loans
sub-serviced by it under this Agreement.
The Sub-Servicer shall deliver to the Master Servicer on the third
day of each month, unless such date is not a Business Day then in such
case, no later than one Business Day prior to the Determination Date, by
3:00 p.m. Eastern Standard Time by electronic transmission in a format
designated by the Master Servicer (with a hard copy upon request and not
later than the fourth day of each month), a remittance report containing
scheduled balance information for each Mortgage Loan reflecting the
scheduled Periodic Payment for such month in the form of Exhibit F
attached hereto. In addition, on each day that the Sub-Servicer forwards
to the Master Servicer any funds pursuant to Section 3.01(c)(11) 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 F attached
hereto. The Sub-Servicer shall also prepare and deliver to the Master
Servicer a reconciliation of all collection accounts and servicing
accounts for the calendar month preceding each Determination Date,
together with a copy of the related bank statement within twenty-five (25)
days after such Determination Date.
(25) Section 3.16. With respect to the Mortgage Loans serviced
hereunder, the Sub-Servicer shall fulfill all of the obligations of the
Master Servicer required pursuant to Section 3.16 of the Pooling and
Servicing Agreement as if the Sub-Servicer were the Master Servicer
hereunder; provided, however, that the Sub-Servicer shall not be required
to make available information or reports prepared by or entered into by
the Special Servicer to the extent such information and reports are not in
the possession of the Sub-Servicer. Upon reasonable prior notice, the
Sub-Servicer shall provide to the Master Servicer access to its books and
records related to the servicing of the Mortgage Loans serviced hereunder
(including, at the option of the Master Servicer, an on-site review).
(26) Sections 3.19. Section 3.19 of the Pooling and Servicing
Agreement is incorporated herein with the following modifications. The
Sub-Servicer shall deliver the Servicer Prepayment Interest Shortfall
called for in Section 3.19 of the Pooling and Servicing Agreement on the
Sub-Servicer Remittance Date in an amount equal to the sum of (i) the
lesser of (A) the aggregate amount of Prepayment Interest Shortfalls, if
any, incurred in connection with Principal Prepayments received in respect
of those Mortgage Loans serviced by the Sub-Servicer under this Agreement
during the most recently ended Collection Period, and (B) the aggregate of
(1) that portion of its Sub-Servicing Fees for the related Collection
Period that is, in the case of each and every Mortgage Loan serviced by
the Sub-Servicer under this Agreement for which such Sub-Servicing Fees
are being paid in such Collection Period, calculated at 0.01% per annum,
and (2) all Prepayment Interest Excesses received in respect of those
Mortgage Loans serviced by the Sub-Servicer under this Agreement during
the most recently ended Collection Period, plus (ii) in the event that any
Principal Prepayment was received on the last Business Day of the second
most recently ended Collection Period, but for any reason was not included
as part of the Available Distribution Amount for the preceding Servicer
Remittance Date (other than because of application of the subject
Principal Prepayment in accordance with Section 3.05(a) for another
purpose), the total of all interest and other income accrued or earned on
the amount of such Principal Prepayment while it is on deposit in the
Sub-Servicer Custodial Account. Notwithstanding the foregoing, the
Sub-Servicer shall have no obligation to deposit any Servicer Prepayment
Interest Shortfall with respect to any Principal Prepayment for which the
Master Servicer or the Special Servicer waived the requirement under the
related Mortgage or the related Mortgage Note that the Mortgagor pay
interest through and including the first Due Date following the date of
the Principal Prepayment.
(27) Section 3.24. 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 the Sub-Servicer services; 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 enable the Master Servicer to make such
Servicing Advance, the Sub-Servicer shall make such Servicing Advance and
the Master Servicer shall reimburse the Sub-Servicer for such Servicing
Advance within five (5) Business Days of receipt of written request
therefor and interest thereon at the Prime Rate. 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.
(28) Section 3.26(a). The Sub-Servicer shall immediately 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 or the Special Servicer.
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.
(29) Section 3.30. No Sub-Servicer will permit a modification,
waiver or amendment with respect to the Mortgage Loans except with the
written consent of the Master Servicer. The Master Servicer shall forward
any such package that requires the consent of the Special Servicer,
Controlling Class Representative, and/or Rating Agencies promptly to the
Special Servicer, Controlling Class Representative, and/or Rating
Agencies, as the case may be, but in any event within ten (10) Business
Days of its initial receipt from the Sub-Servicer.
The Sub-Servicer shall not consent to any Principal Prepayment,
partially or in its entirety, if the Mortgagor would be prohibited from
making such Principal Prepayment without such consent. The Sub-Servicer
shall promptly forward all requests for Principal Prepayments to the
Master Servicer, along with a payoff statement (with respect to each
Principal Prepayment request) setting forth the amount of the necessary
Principal Prepayment and Prepayment Premiums calculated by the
Sub-Servicer.
The Master Servicer will process all defeasance requests and any
defeasance of a Mortgage Loan. The Sub-Servicer will forward any request
for defeasance to the Master Servicer within three (3) Business Days.
(30) Section 4.07 is not incorporated herein. The Sub-Servicer shall
have no obligation to make P&I Advances.
(31) Section 10.01. The Subservicer shall cooperate with the Master
Servicer and/or Depositor to enable them to comply with Regulation AB.
(32) Section 10.03.
(33) Section 10.05 is not incorporated herein. The Subservicer shall
cooperate with the Trustee, Depositor and Master Servicer to enable the
Trustee, Depositor and Master Servicer to fulfill all of their obligations
of the under Section 10.05 of the Pooling and Servicing Agreement.
(34) Section 10.06. The Subservicer shall provide all reports
required of a Sub-Servicer or Servicing Function Participant under Section
10.06 of the Pooling and Servicing Agreement to the Trustee and Depositor,
with a copy to the Master Servicer.
(35) Section 10.07. The Subservicer shall provide all reports
required of a Reporting Servicer, Primary Servicer or Servicing Function
Participant under Section 10.07 of the Pooling and Servicing Agreement to
the Trustee and Depositor, with a copy to the Master Servicer. To the
extent that the Subservicer is aware of any information that would
constitute Additional Form 10-K Disclosure, the Subservicer shall provide
such information to the Trustee and Depositor, with a copy to the Master
Servicer no later than March 1st of each year (subject to a grace period
through March 15th).
(36) Section 10.08. So long as the Master Servicer is obligated
under Section 10.08 of the Pooling and Servicing Agreement to provide a
Performance Certification, the Subservicer covenants to provide a backup
certification to the Master Servicer in the form set forth on Exhibit G
hereto, which shall contain any certifications substantially similar to
any certification required to be delivered by the Master Servicer pursuant
to Section 10.08 of the Pooling and Servicing Agreement and shall provide
such further information and assistance as may be required to cooperate
with the Master Servicer in complying with the requirements of Section
10.08 of the Pooling and Servicing Agreement. The certification shall be
provided by March 1st of each year (subject to a grace period through
March 15th). The certification may be relied upon by the Master Servicer
in performing its obligations under Section 10.08 of the Pooling and
Servicing Agreement.
(37) Section 10.09. The Subservicer shall promptly notify the
Trustee, Depositor and Master Servicer to the extent that the Subservicer
becomes aware of a Reportable Event. The Subservicer shall cooperate with
the Master Servicer to enable the Master Servicer to fulfill its
obligations under Section 10.09 of the Pooling and Servicing Agreement.
The Subservicer shall notify the parties to the Pooling and Servicing
Agreement of any Reportable Event in the time frames set forth in Section
10.09 of the Pooling and Servicing Agreement.
(38) Section 10.10.
(39) Section 10.11. The Subservicer shall provide the annual
compliance certificate to the Trustee, Depositor and Master Servicer, by
March 1 (subject to a grace period through March 15th).
(40) Section 10.12. The Subservicer shall provide the annual reports
on assessment of compliance with the Relevant Servicing Criteria to the
Trustee, Depositor and Master Servicer, by March 1 (subject to a grace
period through March 15th), commencing March 2007.
(41) Section 10.13. The Subservicer shall provide the annual
independent accountants' report to the Trustee, Depositor and Master
Servicer, by March 1 (subject to a grace period through March 15th),
commencing March 2007.
(42) Section 10.14. References to the Servicing Function Participant
shall be references to the Subservicer. References to the Trustee, the
Master Servicer and the Special Servicer shall remain references to such
parties. The Subservicer agrees to provide the indemnification and
contribution obligations required of the Servicing Function Participant.
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 partnership, limited liability company or corporation
under the laws of the state of its organization or, as applicable, a national
banking association under the laws of the United States of America.
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 (i) must be a company whose business includes the origination or
servicing of mortgage loans and shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, (ii) must be an approved servicer of multifamily mortgage loans for
▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or a HUD-Approved Servicer, (iii) must be reasonably
acceptable to the Master Servicer, and (iv) shall assume in writing the
obligations of the Sub-Servicer under this Agreement.
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
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 or any such person against
liability to the Master Servicer for any breach of a representation or warranty
made herein, or failure to perform its obligations in strict compliance with the
servicing standards, 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 willful 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 (a) it is specifically required to bear the costs of such legal
action or (b) 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.
Section 3.04 Sub-Servicer's Resignation.
The Sub-Servicer may resign from the obligations and duties hereby
imposed on it at any time with thirty (30) days written notice to the Master
Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Sub-Servicer to service
the Mortgage Loans hereunder, the Sub-Servicer acknowledges that the Master
Servicer has acted in reliance upon the Sub-Servicer's independent status, the
adequacy of its servicing facilities, plant, personnel, records and procedures,
its integrity, reputation and financial standing and the continuance thereof
Subject to Section 3.01(c)(4) of this Agreement, without in any way limiting the
generality of this Section 3.05, the Sub-Servicer shall neither assign nor
transfer this Agreement or the servicing hereunder nor delegate its rights or
duties hereunder or any portion thereof, or sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written approval
of the Master Servicer, which consent will not be unreasonably withheld or
delayed.
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 (1) any breach by the indemnitor of a representation or
warranty 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 the 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.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
"Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(a) any failure by the Sub-Servicer to deposit into the Sub-Servicer
Custodial Account, any Escrow Account or any REO Account, or to deposit into, or
to remit to the Master Servicer for deposit into the Collection Account on the
dates and at the times required by this Agreement, any amount required to be so
deposited or remitted under this Agreement; or
(b) any failure on the part of the Sub-Servicer to (i) timely
provide to the Master Servicer the information called for on Exhibit D attached
hereto as required by Section 3.01(c)(25) of this Agreement, to the extent the
obtaining of such information which is a part of such report is within the
Sub-Servicer's control and such failure remains uncured for five (5) Business
Days after the Sub-Servicer has received written notice from the Master Servicer
of such failure, or (ii) timely provide to the Master Servicer the Collection
Report and such failure continues unremedied for one (1) Business Day; provided
that if the failure of the Sub-Servicer to provide the Servicer the Collection
Report was the result of any act of force majeure or other act beyond the
control of Sub-Servicer, no Event of Default will result, or (iii) in any way
comply with Section 3.01(c)(31) through 3.01(c)(42) of this Agreement; or
(c) the Sub-Servicer shall fail three (3) times within any one (1)
year period to timely provide to the Master Servicer any report required by this
Agreement to be provided to the Master Servicer, to the extent the obtaining of
such information which is a part of such report is within the Sub-Servicer's
control and the Master Servicer has within fifteen (15) Business Days after each
such failure notified the Sub-Servicer of such failure in writing (which may be
via facsimile or e-mail), provided that if any such failure was the result of
any act of force majeure or other act beyond the control of the Sub-Servicer no
event of Default will result; 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 thirty (30) days (ten (10) days in the case of payment of
insurance premiums) 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 2.04 of the Pooling and Servicing Agreement as
modified by Section 3.01(c)(2) of this Agreement (as well as the References
Modification) which materially and adversely affects the interests of the Master
Servicer, any Class of Certificateholders and which continues unremedied for a
period of thirty (30) days 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; or
(f) 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
(g) 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
(h) 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 corporate action in furtherance of the foregoing; or
(i) the Sub-Servicer receives actual knowledge that (i) Fitch has
qualified, downgraded or withdrawn its rating or ratings on one or more Classes
of Certificates, or (ii) that Fitch has placed one or more Classes of
Certificates on "rating watch negative" in contemplation of a rating downgrade
or withdrawal (and such "rating watch negative" placement shall not have been
withdrawn by Fitch within sixty (60) days of the date the Sub-Servicer obtained
such actual knowledge), 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
action; or
(j) the Sub-Servicer shall cease to be an approved servicer of
multifamily mortgage loans for at least one of ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or a
HUD-Approved Servicer; or
(k) the Sub-Servicer shall no longer be rated CMS3 or higher by
Fitch;
(l) the Sub-Servicer is removed from S&P's approved primary servicer
list; or
(m) 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.
If any Event of Default shall occur and be continuing, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied within any applicable cure period, the Master Servicer may terminate,
by notice in writing to the Sub-Servicer, all of the rights and obligations of
the Sub-Servicer as the Sub-Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof. In the event that the Master Servicer
fails to exercise its right to terminate the Sub-Servicer upon the occurrence of
the Event of Default described in Section 4.01(b)(iii), the Depositor shall have
the right to terminate the Sub-Servicer after any applicable grace period. 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 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 its Sub-Servicer Custodial Account,
the Collection Account, any Escrow Account and any REO 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).
In addition to any other rights the Servicer may have hereunder, if
the Sub-Servicer fails to remit to the Master Servicer any amounts when required
to be remitted hereunder, the Sub-Servicer shall pay to the Master Servicer
interest on the amount of such late remittance at the Prime Rate plus three
percent (3%), applied on a per diem basis for each day such remittance is late
(i.e., said per annum rate divided by 365 multiplied by the number of days
late); but in no event shall such interest be greater than the maximum amount
permitted by law.
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 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 or in Section 3.01
of the Pooling and Servicing Agreement, 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) 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 (iv) upon
termination of the Pooling and Servicing Agreement. Any notice of termination
shall be in writing and delivered to the Sub-Servicer as provided in Section
6.05 of this Agreement.
Section 5.02 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 (but not the right to receive the
Sub-Servicing Fee) 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 although duties of the Sub-Servicer shall terminate to
the extent transferred to the Special Servicer, the Sub-Servicer shall retain
the Mortgage Loans on its computer systems so long as such Mortgage Loans are
Specially Serviced Mortgage Loans. Any such Mortgage Loan retained on the
computer systems of the Sub-Servicer shall be subject to the rights of the
Special Servicer while such Mortgage Loan is a Specially Serviced Mortgage Loan.
In addition, 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 Mortgaged 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 Section 3.04, 4.01 or 5.01 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 deliver annually, no later than April 25 of
each year, to the Master Servicer publicly available financial statements of the
Sub-Servicer or its corporate parent and, upon the request of the Master
Servicer, make available other records relevant to the performance of the
Sub-Servicer's obligations hereunder.
Section 6.03 Regulation AB Readiness Certificate.
The Sub-Servicer shall provide to the Master Servicer an officer's
certificate as of September 30 of each year that confirms that the Sub-Servicer
has engaged a registered public accounting firm to issue the attestation report
on the Sub-Servicer's assessment of compliance with the relevant servicing
criteria for the period ending December 31 of the current calendar year pursuant
to Section 10.13 of the PSA, and that the Subservicer expects to comply with the
all of the Regulation AB reporting requirements in Sections 3.01(c)(31) through
3.01(c)(42) of this Agreement.
Section 6.04 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 6.05 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;
(3) the account certifications in the form of Exhibit E hereto
required by Sections 3.0l(c)(6) and (8) 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 6.06 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:
Midland Loan Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Bank of America, N.A.:
Bank of America, N.A.,
Capital Markets Servicing Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Servicing Manager
Reference: Deutsche Mortgage & Asset Receiving
Corporation Series 2006-C7
with copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice.
Section 6.07 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 the Mortgage Loans 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 6.08 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 6.09 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 6.10 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 or
the Trustee, without the Master Servicer's prior written consent, any
information pertaining to the Mortgage Loans, the Mortgaged Properties or any
borrower thereunder, except to the extent that (a) the Sub-Servicer provides
prior written notice to the Master Servicer and it is appropriate for the
Sub-Servicer to do so (i) in working with third-party vendors, property
inspectors, legal counsel, auditors, other advisors, taxing authorities or other
governmental agencies, (ii) in accordance with the Servicing Standard or (iii)
when required by any law, regulation, ordinance, court order or subpoena or (b)
the Sub-Servicer is disseminating general statistical information relating to
the mortgage loans being serviced by the Sub-Servicer (including the Mortgage
Loans) so long as the Sub-Servicer does not identify the owner of the related
Mortgage Loan or the related Borrower.
Section 6.11 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 6.12 Third Party Beneficiary.
The Depositor and Trustee, for the benefit of the
Certificateholders, 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, Trustee, the Trust Fund, any successor
Master Servicer or any Certificateholder shall have any duties under this
Agreement or any liabilities arising herefrom.
Section 6.13 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 6.14 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 6.15 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 6.16 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 6.17 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 6.18 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 6.19 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.
[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.
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
MIDLAND LOAN SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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.
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
MIDLAND LOAN SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
-------------------------------------------------------------------------------------------------------------------------
Sub-Servicing
Loan Fee Rate (basis
Number Property Name Current Balance points)
-------------------------------------------------------------------------------------------------------------------------
59780 Bon-Ton Department Stores Portfolio 129,670,402 1.0
-------------------------------------------------------------------------------------------------------------------------
3219705 Granite Run Mall 122,000,000 1.0
-------------------------------------------------------------------------------------------------------------------------
3400082 Indianapolis North Marriott 52,725,000 1.0
-------------------------------------------------------------------------------------------------------------------------
59292 Windsor Lake Apartments 43,612,290 1.0
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Mall 42,880,171 1.0
-------------------------------------------------------------------------------------------------------------------------
59419 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 25,091,122 1.0
-------------------------------------------------------------------------------------------------------------------------
59690 Verandas at Blairstone 23,000,000 1.0
-------------------------------------------------------------------------------------------------------------------------
59673 Inn at Laguna Beach 22,500,000 1.0
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 22,100,000 1.0
-------------------------------------------------------------------------------------------------------------------------
59471 Budco Headquarters 21,461,231 1.0
-------------------------------------------------------------------------------------------------------------------------
59437 Thomson Information Services 13,146,026 1.0
-------------------------------------------------------------------------------------------------------------------------
59744 ▇ ▇▇▇▇ ▇▇▇▇▇▇ 12,000,000 1.0
-------------------------------------------------------------------------------------------------------------------------
59568 Holiday Inn Select Memphis 11,495,027 1.0
-------------------------------------------------------------------------------------------------------------------------
59691 ▇▇▇▇▇ Fargo Financial Center 10,040,973 1.0
-------------------------------------------------------------------------------------------------------------------------
59682 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 9,200,000 1.0
-------------------------------------------------------------------------------------------------------------------------
59573 Residence Inn Memphis 8,423,759 1.0
-------------------------------------------------------------------------------------------------------------------------
59481 Killeen Power Center 8,200,000 6.0
-------------------------------------------------------------------------------------------------------------------------
59725 Oakmont Apartments 6,800,000 1.0
-------------------------------------------------------------------------------------------------------------------------
59544 Grafco Building 6,445,909 1.0
-------------------------------------------------------------------------------------------------------------------------
59572 Radisson Orlando 3,957,457 1.0
-------------------------------------------------------------------------------------------------------------------------
59689 ▇▇▇▇▇ MHC Portfolio - 6 Lincoln 2,876,420 1.0
-------------------------------------------------------------------------------------------------------------------------
59796 Diablo Villas Apartments 2,550,000 1.0
-------------------------------------------------------------------------------------------------------------------------
59698 A Self Storage Center 2,381,250 1.0
-------------------------------------------------------------------------------------------------------------------------
59674 ▇▇▇▇▇ MHC Portfolio - 1 Belle Aire 1,320,000 1.0
-------------------------------------------------------------------------------------------------------------------------
EXHIBIT B
SUB-SERVICER'S OFFICER'S CERTIFICATE
I, [_______________________________], hereby certify that I am the
duly elected [_____________________________] of [Sub-Servicer], a
[_________________], organized under the laws of [_________________________]
(the "Sub-Servicer") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the [________________] of the Sub-Servicer which are
in full force and effect on the date hereof and which have
been in effect without amendment, waiver, rescission or
modification since [_______________________________].
2. Attached hereto as Exhibit 2 is a true, correct and complete
copy of the by-laws 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
[___________________].
3. Attached hereto as Exhibit 3 is an original certificate of the
[____________________] of the Sub-Servicer, dated as of
[________ __], 200[__], and no event has occurred since the
date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the resolutions of the Board of Directors of the
Sub-Servicer authorizing the Sub-Servicer to execute and
deliver the Sub-Servicing Agreement, dated as of [________
___], 200[__] (the "Sub-Servicing Agreement"), by and between
the Sub-Servicer and Bank of America, N.A. and such
resolutions are in effect on the date hereof and have been in
effect without amendment, waiver, rescission or modification
since [___________________].
5. 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.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Sub-Servicer.
Dated: [________________________] By:_____________________________________
Name: [___________________________]
Title: [Vice] President
[Seal]
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: [___________________________]
Title: [Assistant] Secretary
EXHIBIT 5
to
Sub-Servicer's Officer's Certificate
Name Title Signature
_________________________
_________________________
_________________________
_________________________
EXHIBIT C
POOLING AND SERVICING AGREEMENT
EXHIBIT D
FORM OF ADDITIONAL REPORTS
Tax Monitoring Report
Deal: DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION COMMERCIAL MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2006-C7
Sub-Servicer:
Period Ending:
--------------------------------------------------------------------------------------------------------------------------------
Sub- Bank of
Servicer America Borrower Property Property Parcel Taxing Next Tax
Loan No. Loan No. Name Name Address Number Authority Due Date
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
---------------------------------------
Sub- Last Tax
Servicer Last Date Amount
Loan No. Tax Paid Paid
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
Certified By: __________________________
Title: __________________________
UCC Monitoring Report
Deal: DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION COMMERCIAL MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2006-C7
Sub-Servicer:
Period Ending:
--------------------------------------------------------------------------------------------------------------------
Sub- Bank of
Servicer America Property Original Filing Original
Loan No. Loan No. Borrower Name Name Jurisdiction Number Filing Date
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
-----------------------------------------------
Sub- Next
Servicer Continuation Filing
Loan No. Filing Number Date
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
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-----------------------------------------------
-----------------------------------------------
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Certified By: _________________________
Title: _________________________
Insurance Monitoring Report
Deal: DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION COMMERCIAL MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2006-C7
Sub-Servicer:
Period Ending:
-------------------------------------------------------------------------------------------------------------------------------
Sub- Bank of Policy Terrorism
Servicer America Borrower Property Expiration Insurance Type of Policy Coverage Coverage
Loan No. Loan No. Name Name Date Carrier Coverage Number Amount (Y/N)
-------------------------------------------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------
Meets Meets
Loan Payee Qualified Mtge
Sub- Terrorism Endorsement Ins. Doc
Servicer Coverage Reflects Trust Ratings Req
Loan No. Amount (Y/N) (Y/N) (Y/N)
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EXHIBIT E
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 bearing) _______ Suspense
________ 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 F
FORM OF
COLLECTION REPORT
(Deal Name)
(Subservicer Name)
(Reporting Period)
(Collection Period)
---------------------------------------------------------------------------------------------------------------------------
(L3) (L8) (L10) (L6) (L25) (L24) (L23) (L28) (L27)
---------------------------------------------------------------------------------------------------------------------------
Master Unscheduled
Servicer Subservicer Paid Current Scheduled Total Scheduled Scheduled Other Principal
Loan Loan to Note Principal Scheduled Principal Interest Principal _________
Number Number Date Rate Balance P&I Due Payment Payment Adjustments _________
---------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
(L30) (L31) (L14)
-------------------------------------------------------------------------------------------------------------------------------
Master Prepayment
Servicer Prepayment Interest Subservicer Actual
Loan Penalty/Yld Excess Subservicer Subservicer Maintenance Assumption Late Default Principal
Number Maint Rec'd (Shortfall) Fee Rate Service Fee Amount Fee Charges Interest Payment
-------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------
-----------------------------------------
Master
Servicer Actual Actual
Loan Interest Subservicer
Number Payment Service Fee
-----------------------------------------
EXHIBIT G
FORM OF SUB-SERVICER BACKUP CERTIFICATION
COMM 2006-C7 Mortgage Trust (the "Trust")
As contemplated by Section 10.08 of that certain pooling and
servicing agreement dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among Deutsche Mortgage and Asset Receiving Corporation, as
depositor (the "Depositor"), Midland Loan Services, Inc., as the master servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Master Servicer"), CWCapital Asset Management LLC as the special servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Special Servicer") and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the "Trustee")
and paying agent, [identify the certifying individual], a [_______________ ] of
[_____], a [_____] corporation (the "Sub-Servicer") as Sub-Servicer in
connection with the sub-servicing of one or more Mortgage Loans and/or Serviced
Whole Loans under the Pooling and Servicing Agreement, on behalf of the
Sub-Servicer, certify to [Name of Each Certifying Person for ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification], the Depositor, the Master Servicer, the Trustee and their
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
Based on our knowledge, with respect to the period ending December
31, 20[__] (the "Relevant Period"), all servicing information and all
reports required to be submitted by the Sub-Servicer to the Trustee
pursuant to the Pooling and Servicing Agreement (the "Servicer Reports")
for inclusion in the annual report on Form 10-K for the Relevant Period
and inclusion in all reports on Form 8-K have been submitted by the
Sub-Servicer to the Trustee for inclusion in these reports;
Based on our knowledge, with respect to the Relevant Period, all
servicing information and all reports required to be submitted by the
Sub-Servicer to the Master Servicer pursuant to the sub-servicing
agreement between the Sub-Servicer and the Master Servicer (the
"Sub-Servicer Reports") have been submitted by the Sub-Servicer to the
Master Servicer;
Based on our knowledge, the information contained in the Servicer
Reports and Sub-Servicer Reports, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the
period ending December 31, 20[__];
Based upon our knowledge and the annual compliance review performed
as required under Section [__] of the Sub-Servicing Agreement, and except
as disclosed in the compliance certificate delivered pursuant to Section
[__] of the Sub-Servicing Agreement, the Sub-Servicer has fulfilled its
obligations under the Sub-Servicing Agreement in all material respects;
[I am responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Servicing Agreement and based upon my
knowledge and the annual compliance reviews conducted in preparing the
servicer compliance statements for inclusion on Form 10-K pursuant Item
1123 of Regulation AB with respect to the Sub-Servicer, and except as
disclosed in the compliance certificate delivered by the Sub-Servicer
under Section [__] of the Sub-Servicing Servicing Agreement, the
Sub-Servicer has fulfilled its obligations under the Sub-Servicing
Servicing Agreement in all material respects];
I have disclosed to the accountants that are to deliver the annual
attestation report on assessment of compliance with the Relevant Servicing
Criteria in respect of the Sub-Servicer with respect to the Trust's fiscal
year _____ all information relating to the Sub-Servicer's assessment of
compliance with the Relevant Servicing Criteria, in order to enable them
to conduct a review in compliance with the standards for attestation
engagements issued or adopted by the PCAOB; and
All annual assessment reports required under Section [__] of the
Sub-Servicing Agreement and their related annual attestation reports
required to be provided to the Master Servicer, the Trustee and the
Depositor by the Sub-Servicer or any Servicing Function Participant
retained by the Sub-Servicer under or as contemplated by the Pooling and
Servicing Agreement and the Sub-Servicing Agreement have been provided
thereby. Based on my knowledge, all material instances of noncompliance
with the Relevant Servicing Criteria have been disclosed in such reports,
in each case based upon the annual attestation report provided by a
registered public accounting firm, after conducting a review in compliance
with the standards for attestation engagements issued or adopted by the
PCAOB, delivered pursuant to Section [__]of the Sub-Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set forth in the
Sub-Servicing Agreement or, if not defined in the Sub-Servicing Agreement, then
the meanings set forth in the Pooling and Servicing Agreement.
Date: _________________________
[NAME OF SUB-SERVICER]
By:_____________________________
Name:
Title:
EXHIBIT H
FORM OF SEMI-ANNUAL SERVICING CERTIFICATION
Sub-Servicer:________________________
RE: Series_________________________
Pursuant to the Sub-Servicing Agreement(s) between Midland Loan
Services, Inc. and [Sub-Servicer], we certify to the best of our knowledge with
respect to each mortgage Loan serviced by us for Midland Loan Services, Inc.
that, as of the period ending ____________________, except as otherwise noted
below:
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.
Based on [Sub-Servicer's] monitoring of the insurance in accordance with the
Servicing Standard, 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).
All necessary action has been taken to continue all UCC Financing Statements in
favor of the originator of each mortgage loan or in favor of any assignee prior
to the expiration of such UCC Financing Statements.
All reserves are maintained and disbursed in accordance with the loan documents
and no obligation for which a reserve is held has not been completed within the
time required by the applicable document.
If there are any exceptions to any of the items required in any of the
above-referenced paragraphs, such exceptions shall be noted in a schedule
attached hereto substantially in the form of Exhibit D to the Sub-Servicing
Agreement.
EXCEPTIONS:______________________________________
____________________________________ ______________________________________
Servicing Officer Date