EXHIBIT 99.5
SUBSERVICING AGREEMENT
dated as of June 1, 2006
between
MIDLAND LOAN SERVICES, INC.
Servicer
and
CWCAPITAL LLC
Subservicer
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
among
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
as Depositor,
MIDLAND LOAN SERVICES, INC.,
as Master Servicer,
CWCAPITAL ASSET MANAGEMENT LLC
as Special Servicer,
and
▇▇▇▇▇ FARGO BANK, N.A.,
as Trustee and Paying Agent
This SUBSERVICING AGREEMENT, dated and effective as of June 1, 2006,
by and between CWCAPITAL LLC (in the capacity of subservicer, the "Subservicer")
and MIDLAND LOAN SERVICES, INC., a Delaware corporation, acting solely in its
capacity as Servicer under the Pooling and Servicing Agreement (as defined
below) (the "Servicer").
Preliminary Statement
WHEREAS, Deutsche Mortgage & Asset Receiving Corporation, as
depositor, the Servicer, as master servicer, CWCapital Asset Management LLC, as
special servicer (together with its successors and assigns in such capacity, the
"Special Servicer"), and ▇▇▇▇▇ Fargo Bank, N.A., as trustee and paying agent
(together with its successors and assigns in such capacity, the "Trustee"), have
entered into a Pooling and Servicing Agreement, dated as of June 1, 2006,
relating to the Commercial Mortgage Pass-Through Certificates, Series COMM
2006-C7 (as amended, from time to time, the "Pooling and Servicing Agreement"),
a copy of which is attached hereto as Exhibit A; and
WHEREAS, the Servicer desires that the Subservicer act as
Subservicer with respect to the mortgage loans listed on Schedule I hereto
(each, a "Mortgage Loan") and provide, on behalf of the Servicer, the necessary
servicing of the Mortgage Loans performed in a manner consistent with the
Servicing Standard and in a manner consistent with this Agreement and the
Pooling and Servicing Agreement from the Closing Date until this Agreement is
terminated in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Subservicer and the Servicer hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below. Capitalized terms not defined
herein shall have the meanings ascribed to them in the Pooling and Servicing
Agreement.
"Agreement": This Subservicing Agreement, as modified, amended and
supplemented from time to time, including all exhibits, schedules and addenda
hereto.
"Day One Report": With respect to each Mortgage Loan, a statement in
the form of the CMSA Loan Periodic Update File (in the form and containing the
information called for by the version of such report in effect at the time under
the reporting standards of the CMSA) setting forth the scheduled payments of
interest and principal and the amount of any unanticipated prepayments of which
the Subservicer has received notice (including without limitation those for
which a notice has been given to the effect that the prepayment will be made at
any time during the applicable Due Period), indicating the Mortgage Loan and on
account of what type of payment such amount is to be applied on behalf of the
related Borrower.
"Loan Status Reports": The form of reports to be submitted by
Subservicer with respect to reporting about the status of real estate taxes,
status of insurance and status of UCC financing statement for the Mortgage Loans
as more particularly described and set forth on Exhibit B-3.
"Monthly Remittance Report": The Monthly Remittance Report described
in Exhibit B-1 hereto and required to be delivered by the Subservicer to the
Servicer under the Task Description.
"Mortgage Loan": As defined in the Preliminary Statement.
"Officer's Certificate": In the case of the Subservicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, Executive Vice President or any Senior Vice President,
Vice President or Assistant Vice President or an employee designated as a
Subservicing Officer pursuant to this Agreement.
"Payment and Collection Description": The description of the
obligations of the Subservicer with respect to collection and remittance of
payments on the Mortgage Loans as more particularly described in Section 2.1(e).
"Payment and Loan Status Reports": Collectively, the Monthly
Remittance Reports, the Loan Status Reports and the following reports described
in the Task Description: the CMSA Operating Statement Analysis Reports, the CMSA
NOI Adjustment Worksheets, the CMSA Loan Periodic Update File, the CMSA Property
File, the CMSA Loan Level Reserve/LOC Report, the CMSA Servicer Watch List and
the CMSA Comparative Financial Status Report.
"Pooling and Servicing Agreement": As defined in the preamble to
this Agreement.
"Servicer": As defined in the preamble to this Agreement.
"Servicer Servicing Documents": A copy of the documents contained in
the Mortgage File for the Mortgage Loans.
"Services": Those activities to be provided by the Subservicer for
the Servicing of the Mortgage Loans pursuant to the provisions of this
Agreement.
"Servicing": With respect to any Mortgage Loan, the right and
obligation of the Subservicer to administer such Mortgage Loan in accordance
with the provisions hereof.
"Servicing Documents": The Servicer Servicing Documents and
Subservicer Servicing Documents.
"Servicing Standard": With respect to the Subservicer, to service
and administer the Mortgage Loans (and any Serviced Companion Loan but not any
Non-Serviced Mortgage Loan) that the Subservicer is obligated to service and
administer pursuant to this Agreement on behalf of the Servicer and in the best
interests of and for the benefit of the Certificateholders (and in the case of
any Serviced Companion Loan, the related holder) as a collective whole (as
determined by the Subservicer in its good faith and reasonable judgment), in
accordance with applicable law, the terms of this Agreement and the terms of the
respective Mortgage Loans and Serviced Companion Loan and, to the extent
consistent with the foregoing, further as follows: (a) with the same care, skill
and diligence as is normal and usual in its general mortgage servicing and REO
property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder; and (b) with
a view to the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans and Serviced Companion Loans; and without
regard to: (I) any other relationship that the Subservicer, or any Affiliate
thereof, may have with the related Borrower; (II) the ownership of any
Certificate or any interest in any Non-Serviced Companion Loan, Serviced
Companion Loan, or any mezzanine loan related to a Mortgage Loan by the
Subservicer, or any Affiliate thereof; (III) the Servicer's obligation to make
Advances; (IV) the right of the Subservicer (or any Affiliate thereof) to
receive reimbursement of costs, or the sufficiency of any compensation payable
to it, hereunder or with respect to any particular transaction; and (V) any
obligation of the Subservicer (or any Affiliate thereof) to purchase any
Mortgage Loan or Serviced Companion Loan from the Trustee; provided, however,
that in no event shall the foregoing standards be less than the applicable
provisions of the Servicing Standard set forth in the Pooling and Servicing
Agreement.
"Special Servicer": As defined in the Preliminary Statement.
"Subservicer": As defined in the preamble to this Agreement.
"Subservicer Collection Account": An account which is an Eligible
Account established by Subservicer for the purposes set forth in this Agreement
in the name of "CWCapital LLC or the name of any successor thereto hereunder, as
Subservicer for Midland Loan Services, Inc., for the benefit of ▇▇▇▇▇ Fargo
Bank, N.A., as Trustee in trust for Holders of Deustche Mortgage & Asset
Receiving Corporation, COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates."
"Subservicer Default": As defined in Section 6.1 hereof.
"Subservicer Determination Date": The Business Day immediately
preceding each Determination Date.
"Subservicer Errors and Omissions Insurance Policy": As defined in
Section 5.4(a) hereof.
"Subservicer Fidelity Bond": As defined in Section 5.4(a) hereof.
"Subservicer Remittance Date": For each Distribution Date, the
Business Day immediately succeeding the related Subservicer Determination Date.
"Subservicer Servicing Documents": (a) A copy of the documents
contained in the Mortgage Files for the Mortgage Loans and (b) all other
servicing documents and records in possession of Subservicer that relate to or
are used for the servicing of the Mortgage Loans and that are not required to be
part of the applicable Mortgage Files.
"Subservicing Fee": For each calendar month, as to each Mortgage
Loan, one-twelfth of the Subservicing Fee Rate multiplied by the Stated
Principal Balance of each Mortgage Loan immediately before the Due Date
occurring in such month, but prorated for the number of days during the calendar
month for such Mortgage Loan for which interest actually accrues on the Mortgage
Loan and only from collections on such Mortgage Loan. The Subservicing Fee shall
be determined in the same manner (other than the rate) as the applicable
Mortgage Rate is determined for such Mortgage Loan for such month.
"Subservicing Fee Rate": With respect to each Mortgage Loan, a rate
per annum equal to the number of basis points set forth opposite such Mortgage
Loan on Schedule I hereto.
"Subservicing Officer": Any officer or employee of the Subservicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans whose name and specimen signature appear on a list of servicing
officers or employees furnished to the Servicer by the Subservicer and signed by
an officer of the Subservicer, as such list may from time to time be amended.
"Subservicing Termination Date": As defined in Section 6.2 hereof.
"Successor Subservicer": The Person, which Person must meet the
requirements contained in Section 6.3 hereof) selected by the Servicer upon the
termination of the Subservicer resulting from any Subservicer Default, if any,
who shall thereafter perform the Services with respect to the Mortgage Loans;
provided, that the Servicer shall perform all Services with respect to the
Mortgage Loan until such Person, if any, is selected.
"Task Description": The outline description of the obligations of
the Subservicer and Servicer with respect to the Mortgage Loans as set forth in
Exhibit B-5 attached to this Agreement.
"Trustee": As defined in the Preliminary Statement.
Section 1.2. General. In no event shall any provision of this
Agreement (including Exhibit B-6) be construed to impose on the entity that
constitutes the Subservicer any limitation on any rights that such entity has
under the Pooling and Servicing Agreement in such entity's capacity as Directing
Holder under the Pooling and Servicing Agreement.
ARTICLE II
SUBSERVICING
Section 2.1 Subservicing.
(a) From the Closing Date until the Subservicing Termination Date,
Servicer hereby authorizes and directs Subservicer to service, and the
Subservicer hereby agrees to service, the Mortgage Loans as Subservicer on
behalf and at the direction of the Servicer as provided in this Agreement.
(b) The Subservicer shall perform all tasks and responsibilities
necessary to satisfy the requirements set forth under the Task Description, in
each case in a manner not inconsistent with the Pooling and Servicing Agreement.
(c) On the Closing Date, the Subservicer shall establish the
Subservicer Collection Account, which shall be an Eligible Account, and the
Subservicer shall notify the Servicer in writing of the name and address of the
depository institution at which the Subservicer Collection Account is maintained
and the number of the Subservicer Collection Account. The Subservicer shall
deliver to the Servicer prior written notice of any change in the location, name
or address of the applicable depository institution or account number of the
Subservicer Collection Account.
(d) The Subservicer shall make efforts consistent with the Servicing
Standard to collect all monthly payments of principal and interest with respect
to the Mortgage Loans (except for payments due on or prior to the Cut-off Date),
as well as late charges, default interest, Yield Maintenance Charges, Insurance
Proceeds, Condemnation Proceeds and any and all other amounts due from the
Borrower or a third party with respect to the Mortgage Loans pursuant to the
mortgage loan documents for each Mortgage Loan; provided, however, that with
respect to any payments that are required under the terms of the applicable
mortgage loan documents to be made directly to a Person other than the holder of
the related Mortgage Loan, the Subservicer shall use efforts consistent with the
Servicing Standard to cause such payments to be made. The Subservicer shall
deposit all payments and collections received by the Subservicer into the
Subservicer Collection Account on a daily basis; provided, however, that the
Subservicer shall be entitled to retain and pay to itself the related
Subservicing Fee from the interest portion of any such payments.
(e) The Subservicer shall not withdraw funds from the Subservicer
Collection Account, except as follows: (1) on the Subservicer Remittance Date
occurring in each month, the Subservicer shall remit to the Servicer by wire
transfer of immediately available funds any and all amounts on deposit in the
Subservicer Collection Account as of the close of business on the Subservicer
Determination Date occurring in such month (net of any amounts permitted to be
withdrawn prior thereto), other than any amounts that represent Scheduled
Payments received for a Due Date occurring after such Subservicer Determination
Date; (2) the Subservicer shall remit to the Servicer by wire transfer of
immediately available funds within one Business Day following the receipt
thereof any late payments and any principal prepayments or other unscheduled
payments or Balloon Payments (in each case including the related interest
payment paid by the Borrower); (3) the Subservicer shall be entitled to withdraw
and pay to itself any investment or other income earned on amounts on deposit in
the Subservicer Collection Account to the extent provided below; (4) the
Subservicer shall withdraw and pay to itself each other item of compensation to
which it is entitled (but only from the amounts from which such compensation is
payable as otherwise provided herein), (5) the Subservicer shall withdraw, and
transfer to the escrow account described in subsection (f), within one Business
Day following receipt thereof, any amount deposited into the Subservicer
Collection Account that constitutes a collection of an escrow or a reserve
amount and (6) the Subservicer shall be entitled to withdraw from the
Subservicer Collection Account at any time any amounts on deposit therein that
were not required to be deposited into the Subservicer Collection Account. The
Subservicer shall keep and maintain separate accounting for the purpose of
justifying any withdrawals made from the Subservicer Collection Account. In the
event any payments received by Subservicer becomes NSF after the monies
associated with that payment have been remitted to the Servicer, the Servicer
will return such moneys to Subservicer by wire transfer in immediately available
funds within one Business Day following notice from the Subservicer. Funds in
the Subservicer Collection Account may be invested and, if invested, shall be
invested by, and at the risk of, the Subservicer in Permitted Investments
selected by the Subservicer which shall mature, unless payable on demand, not
later than the Business Day immediately preceding the next date on which such
funds are required to be remitted to the Servicer, and any such Permitted
Investment shall not be sold or disposed of prior to its maturity unless payable
on demand. All such Permitted Investments shall be made in the name of "▇▇▇▇▇
Fargo Bank N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset
Receiving Corporation, COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates." An amount equal to all income and gain realized from any such
investment shall be for the account of the Subservicer as additional servicing
compensation and the Subservicer shall be entitled to withdraw such income and
gain from the Subservicer Collection Account at any time and from time to time.
The amount of any losses incurred in respect of any such investments shall be
for the account of the Subservicer, which shall deposit the amount of such loss
in the Subservicer Collection Account (to the extent such loss is not offset by
income from other investments that is retained in the Subservicer Collection
Account) out of its own funds immediately as realized.
(f) With respect to escrow or reserve payments as listed on the Task
Description, the Subservicer shall collect escrow or reserve amounts with
respect to the Mortgage Loans, and shall deposit such funds in an escrow
account, which shall be an Eligible Account, and shall maintain, disburse and
account for such funds as provided in the Task Description, for real estate
taxes, insurance and reserves, and escrows for repairs, replacements, principal
and interest payments and lease payments, and any other matters specified in any
agreement in which funds are held at the time, and in the manner and for the
purposes as otherwise required or delineated in the mortgage loan documents for
each Mortgage Loan and with respect to the Servicer under the Pooling and
Servicing Agreement. The Subservicer may direct the investment of such funds
subject to and in accordance with the criteria and requirements set forth in the
Pooling and Servicing Agreement relating to Escrow Accounts, including without
limitation the obligation to deposit into the Escrow Account the amount of any
investment losses to the extent required in the Pooling and Servicing Agreement.
Subservicer shall have the benefit and shall retain all interest and income
earned on the Escrow Accounts for the Mortgage Loans that is not paid to
[Mortgagors].
(g) Notwithstanding any contrary provision of the Task Description,
the Subservicer shall actively monitor whether insurance policies for the
Mortgaged Properties contain exclusions that were not in existence under the
policies in effect on June 1, 2006. If at any time the Subservicer determines
that any Borrower may not or does not maintain terrorism insurance required by
the mortgage loan documents and the Pooling and Servicing Agreement, or that the
insurance policies with respect to the Mortgaged Properties contain additional
exclusions that were not in existence under the policies in effect on June 1,
2006, the Subservicer shall promptly notify the Servicer of such possible or
actual failure and, if requested, provide the Servicer with details of the
Borrower's insurance coverage. The Servicer will make (i) the determination of
whether or not the insurance coverage meets the requirements of the mortgage
loan documents and the Pooling and Servicing Agreement, including any assessment
of the availability of such insurance at commercial reasonable rates and terms,
(ii) any decision to advance or force place insurance and (iii) any
determination to waive or enforce any such insurance requirement.
Notwithstanding the foregoing, if the Subservicer and the Directing Holder under
the Pooling and Servicing Agreement are the same entity or affiliates, the
Subservicer shall be entitled to make a determination or recommendation, for
review or approval by the Directing Holder, and upon receiving approval from the
Directing Holder the Subservicer may take action regarding, the matters set
forth above, provided that either (i) the matter involves the force placement of
insurance that does not require an Advance or involve a waiver or modification
of the applicable Mortgage Loan Documents or (ii) the Subservicer has afforded
the Servicer not less than three Business Days in which to confirm whether the
course of action agreed upon between the Subservicer and the Directing Holder
complies with the Servicing Standard; provided, further, that, notwithstanding
any contrary provision of clause (ii), the Servicer shall retain all rights that
it may otherwise have under the Pooling and Servicing Agreement regarding
Advances.
Section 2.2 Standard of Care. The Subservicer shall perform all
Services on behalf of the Servicer in accordance with the terms of this
Agreement, the Servicing Standard and the applicable provisions of the Pooling
and Servicing Agreement (and, in connection therewith, if a conflict exists
between this Agreement and the Pooling and Servicing Agreement, then the Pooling
and Servicing Agreement shall control). Subservicer and the Servicer agree that,
in connection with the performance of its obligations hereunder, the Subservicer
shall be entitled to request from the Servicer, and the Servicer agrees that it
shall provide, express instructions for the completion of any of the Services to
be performed or completed by the Subservicer, to the extent necessary to clarify
any ambiguities in the terms of this Agreement. The Servicer further agrees that
the Subservicer shall be entitled to rely upon any such written instructions.
The Servicer shall be entitled from time to time to provide reasonable
instructions to the Subservicer regarding the actions or inactions that comply
with the Servicing Standard under the Pooling and Servicing Agreement and the
Subservicer shall comply with such instructions.
Section 2.3 Compensation and Other Payments to the Subservicer. As
consideration for the Subservicer's performance of the Services hereunder, the
Subservicer shall be entitled to deduct (and retain from the remittance
otherwise required to be made to the Servicer) the Subservicing Fee in
accordance with Section 2.1(e) of this Agreement, with respect to the related
Due Period for the Mortgage Loans, and only with respect to such Mortgage Loan
for which a payment was received by the Servicer or forwarded to the Servicer by
the Subservicer. Notwithstanding the foregoing, Subservicer shall not be
entitled to a Subservicing Fee with respect to any Mortgage Loan for which a
Servicing Transfer Event has occurred unless such Mortgage Loan becomes a
Corrected Mortgage Loan or with respect to which the Subservicer has been
terminated as Subservicer under this Agreement and the Pooling and Servicing
Agreement.
Subservicer shall have the benefit and shall retain all interest and
income earned on the Subservicer Collection Account for the Mortgage Loans to
the extent provided in Section 2.1(e) and on the escrow accounts to the extent
provided in Section 2.1(f). If Subservicer is terminated under this Agreement,
it shall be entitled to collect all such interest and income that accrues
through the date of termination. If any Mortgage Loan becomes a Specially
Serviced Loan, Subservicer shall be entitled to collect all such interest and
income that accrues through the date of the applicable Servicing Transfer Event.
The right to retain such interest and income shall resume if such Mortgage Loan
becomes a Corrected Mortgage Loan.
The Subservicer shall also be entitled to retain the fees or
portions of fees set forth in the Task Description and Exhibit B-6. The
Subservicer shall not be entitled to receive any default interest or late fees
collected from the Borrower, and the Subservicer shall promptly, upon collection
of such amounts, forward such interest and fees to the Servicer in accordance
with the Payment and Collection Description. Subservicer may waive the right to
collect a fee or portion of a fee to which it is entitled under this Agreement
but may not waive or otherwise affect the rights of other parties to any other
fees or portions of fees to which Subservicer is not entitled.
The Subservicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Subservicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Servicer or a third party which direction or request requires the
performance of a task or obligation not contemplated of Subservicer under this
Agreement) and shall not be entitled to reimbursement of such costs and
expenses, except (1) as may be specifically provided in this Agreement or (2) to
the extent expenses are reimbursable by a Borrower under the applicable mortgage
loan documents and the Borrower makes such reimbursement.
Section 2.4 Subservicer Representations and Warranties. The
Subservicer hereby makes the following representations and warranties for the
benefit of the Servicer:
(a) The Subservicer is a limited liability company duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts, and the Subservicer 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;
(b) The execution and delivery of this Agreement by the Subservicer
and the performance and compliance with the terms of this Agreement by the
Subservicer will not violate the Subservicer's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable to
it or any of its assets;
(c) The Subservicer has the power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement and has duly executed
and delivered this Agreement;
(d) This Agreement, assuming due authorization, execution and
delivery by the Servicer, constitutes a valid, legal and binding obligation of
the Subservicer enforceable against the Subservicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(e) The Subservicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Subservicer's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Subservicer to perform its obligations
under this Agreement or the financial condition of the Subservicer
(f) No litigation is pending or, to the best of the Subservicer's
knowledge, threatened against the Subservicer the outcome of which, in the
Subservicer's good faith and reasonable judgment, could reasonably be expected
to prohibit the Subservicer from entering into this Agreement or materially and
adversely affect the ability of the Subservicer to perform its obligations under
this Agreement;
(g) No consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required, under
federal or state law, for the execution, delivery and performance of or
compliance by the Subservicer with this Agreement or the consummation by the
Subservicer of any transaction contemplated hereby, other than (1) such
consents, approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Subservicer under this
Agreement or the ability of the Trust Fund to realize on the Mortgage Loans;
(h) The performance of the Services by the Subservicer are in the
ordinary course of business of the Subservicer and the Subservicer possess all
licenses, permits and other authorizations necessary to perform its duties
hereunder.
The Subservicer further represents that since the origination of the
Mortgage Loans, the Subservicer (in its capacity as interim servicer of the
Mortgage Loans prior to the date hereof) has serviced the Mortgage Loans in
accordance with their terms.
ARTICLE III
DOCUMENTS AND OTHER MATTERS
Section 3.1 Segregation of Loan Documents. The Subservicer shall
segregate the Subservicer Servicing Documents related to the Mortgage Loans from
all other assets of the Subservicer and, upon request, forward to the Servicer
copies of such documents or originals of such documents if in the possession of
Subservicer and not part of the Mortgage File forwarded to the Trustee.
Section 3.2 Access to Documents; Provision of Certain Information.
The Subservicer shall make available to the Servicer or any Successor
Subservicer, at a reasonable time, such information as the Servicer or such
Successor Subservicer shall reasonably request in writing and shall make
available to the Servicer or any Successor Subservicer or Persons designated by
the Servicer or such Successor Subservicer such documents as the Servicer shall
reasonably request in writing. The Subservicer shall afford access to the
information described in Section 3.16 of the Pooling and Servicing Agreement to
those Persons identified in such Section as entitled to access to such
information from the Servicer. The Servicer shall make available to the
Subservicer, at a reasonable time, such information as the Subservicer shall
reasonably request in writing in connection with the performance of the Services
and, subject to the terms and conditions of Section 3.16 of the Pooling and
Servicing Agreement, shall make available to the Subservicer or Persons
designated by the Subservicer such documents related to the Mortgage Loans and
the Servicing of the Mortgage Loans as the Subservicer shall reasonably request
in writing.
ARTICLE IV
SERVICER ASSISTANCE
Section 4.1 Servicer Assistance.
(a) The Servicer shall make reasonable efforts to do any and all
things reasonably requested by the Subservicer to enable the Subservicer to
render the Services, including, without limitation, delivering to the Trustee
any receipts or other documentation that the Trustee may require to allow it to
release any Mortgage Files or documents contained therein or acquired in respect
thereof requested by the Subservicer. Notwithstanding any other provision of
this Agreement to the contrary (including any contrary provision of Exhibit
B-5), the Subservicer shall do any and all things reasonably requested by the
Servicer to enable the Servicer to comply with its obligations under the Pooling
and Servicing Agreement. Before the Servicer releases all or any portion of any
Mortgage File or document contained therein or acquired in respect thereof to
the Subservicer, the Servicer may require the Subservicer to execute a receipt
therefor or, in the event of a Mortgage Loan that has been repaid in full, a
certificate with respect to the payment in full of the related Mortgage Loan.
Section 4.2 Specially Serviced Loans. The Subservicer shall promptly
notify the Servicer and the Special Servicer, with respect to each Specially
Serviced Loan, of any questions, complaints, legal notices, or other
communications relating to the foreclosure or default of such loans or
bankruptcy proceedings of a Borrower that are received by the Subservicer and
such other matters as would, consistent with the Servicing Standard, require
notification to the owner or the servicer of the Mortgage Loan. The Servicer
shall notify the Subservicer of any Specially Serviced Loan becoming a Corrected
Mortgage Loan promptly following the Servicer's receipt of notice to such effect
from the Special Servicer and shall request, upon request by the Subservicer,
from the Special Servicer copies of all relevant documents received by the
Special Servicer during the time that such Mortgage Loan was a Specially
Serviced Loan and deliver to the Subservicer such documents promptly following
the Servicer's receipt thereof, together with any relevant documents received by
the Servicer (other than from the Subservicer) during the time that such
Mortgage Loan was a Specially Serviced Loan.
ARTICLE V
ADDITIONAL SUBSERVICER COVENANTS
Section 5.1 Additional Notices. The Subservicer shall promptly
notify the Servicer of any significant events which become known to Subservicer
affecting the Mortgage Loans, the related Borrower or related Mortgaged
Property, such as a payment default, a bankruptcy, a judicial lien or material
casualty event, and the Subservicer shall also promptly advise the Servicer of
all material collection and customer service issues and, if requested, shall
furnish the Servicer with copies of any correspondence or other documents in the
possession of the Subservicer related to any such matter. If litigation is
instituted with respect to a Mortgage Loan, the Subservicer, if aware of such
litigation, shall notify the Servicer immediately as to the status of the
litigation related to such Mortgage Loan and shall, when reasonably required or
requested by the Servicer, provide to the Servicer copies of all pertinent
information in the Subservicer's possession related to such litigation,
including, without limitation, copies of related Servicing Documents.
Section 5.2 No Personal Solicitation. The Subservicer hereby agrees
that it will not knowingly take any action or cause any action to be taken by
any of its agents or Affiliates, or independent contractors or working on its
behalf, to personally, by telephone or mail, solicit the prepayment of any
Mortgage Loan by any Borrower if such solicitation would constitute a violation
of the Servicing Standard. The Subservicer agrees not to forward to any Borrower
or other obligors under a Mortgage Loan, any correspondence or documents between
Servicer and Subservicer without the consent of the Servicer or Special Servicer
(each acting in its sole discretion), unless required by law. In no event shall
a defeasance be construed to constitute a prepayment for purposes of the
foregoing provision.
Section 5.3 Regulation AB Compliance. The Subservicer shall perform,
on behalf of the Servicer, all of the obligations of the Servicer (with respect
to the Mortgage Loans subject to this Agreement) as set forth in those sections
of the Pooling and Servicing Agreement incorporated pursuant to and as modified
by this Section 5.3. Except as otherwise set forth below, for purposes of this
Section 5.3, references to the Depositor, the Trustee, the Paying Agent, the
Rating Agencies, and the Certificateholders shall be deemed to be references to
the Servicer, as applicable, hereunder and references to the Master Servicer,
Sub-Servicer, Primary Servicer, Reporting Servicer, Additional Servicer and
Servicing Function Participant in the following incorporated Pooling and
Servicing Agreement sections shall be deemed to be references to the Subservicer
hereunder (such modification of the incorporated Pooling and Servicing Agreement
sections shall be referred to herein as the "References Modification"). Any
information, notices, reports or disclosures to be given by the Subservicer
under this Section 5.3 shall be given to the Servicer and the Depositor and/or
Trustee, as originally specified in each incorporated section. The following
sections or subsections of the Pooling and Servicing Agreement listed below 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:
(a) Section 10.01. The Subservicer shall reasonably cooperate with
the Servicer, Trustee and/or Depositor to enable them to comply with Regulation
AB.
(b) Section 10.03.
(c) Section 10.05 is not incorporated herein. The Subservicer shall
reasonably cooperate with the Trustee and Depositor in connection with the
Trustee's and the Depositor's good faith efforts to satisfy the Trust's
reporting requirements under the Exchange Act, as such requirements are set
forth in the Pooling and Servicing Agreement.
(d) 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 Servicer.
(e) 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 Servicer no later than March 1st of
each year (subject to a grace period through March 15th).
(f) Section 10.08. So long as the 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 Servicer in the form set forth on Exhibit C hereto. 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 Servicer in performing its
obligations under Section 10.08 of the Pooling and Servicing Agreement.
(g) Section 10.09. The Subservicer shall promptly notify the
Trustee, Depositor and Servicer to the extent that the Subservicer becomes aware
of a Reportable Event. 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.
(h) Section 10.10.
(i) Section 10.11. The Subservicer shall provide the annual
compliance certificate to the Trustee, Depositor and Servicer, by March 1st
(subject to a grace period through March 15th).
(j) Section 10.12. The Subservicer shall provide the annual reports
on assessment of compliance with the Relevant Servicing Criteria to the Trustee,
Depositor and Servicer, by March 1st (subject to a grace period through March
15th), commencing March 2007.
(k) Section 10.13. The Subservicer shall provide the annual
independent accountants' report to the Trustee, Depositor and Servicer, by March
1st (subject to a grace period through March 15th), commencing March 2007.
(l) Section 10.14. References to the Servicing Function Participant
shall be references to the Subservicer. References to the Trustee, the 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 5.4 Fidelity Bond and Errors and Omissions Insurance Policy.
(a) The Subservicer, at its own expense, shall maintain in effect a
fidelity bond (the "Subservicer Fidelity Bond") and an errors and omissions
policy (the "Subservicer Errors and Omissions Insurance Policy") with a
Qualified Insurer, naming the Servicer as loss payee, affording coverage for all
directors, officers and employees (it being acknowledged that a "Qualified
Insurer" shall for this purpose include any entity that satisfies all of the
criteria, other than the ratings criteria, set forth in the definition of
"Qualified Insurer" and whose obligations under the related Subservicer Fidelity
Bond or Subservicer Errors and Omissions Insurance Policy are guaranteed or
backed by an entity that satisfies the ratings criteria set forth in the
definition of "Qualified Insurer" (construed as if such entity were an insurer
referred to therein)). The Subservicer Errors and Omissions Insurance Policy and
Subservicer Fidelity Bond shall be in such form and amount as would permit the
Subservicer to be a qualified FNMA seller-servicer of multifamily mortgage loans
as if all the Mortgage Loans were multifamily mortgage loans. The Subservicer
shall furnish to the Servicer, not later than thirty (30) days after the Closing
Date, evidence (which evidence may consist of a certificate from the applicable
insurance company or companies) of the Subservicer's compliance with this
Section 5.4(a).
(b) The Subservicer shall promptly report in writing to the Servicer
any material adverse changes that may occur in the Subservicer Fidelity Bond or
the Subservicer Errors and Omissions Insurance Policy and shall furnish to the
Servicer upon written request copies of all certificates from the applicable
insurance company or companies evidencing that such bond and insurance policy
are in full force and effect. The Subservicer shall promptly report in writing
to the Servicer all cases of embezzlement or fraud or irregularities of
operation relating to the servicing of the Mortgage Loans by the Subservicer and
its employees, officers, directors, agents and representatives if such events
involve funds relating to the Mortgage Loans. The total of such losses,
regardless of whether claims are filed with the applicable insurer or surety,
shall be disclosed in such reports together with the amount of such losses
covered by insurance. If a bond or insurance claim report is filed with any of
the Subservicer's bonding companies or insurers relating to the Mortgage Loans
or the servicing thereof, a copy of such report (which report may omit any
references to individuals suspected of such embezzlement, fraud or
irregularities of operation) shall be promptly furnished to the Servicer.
Section 5.5 Subservicer's Financial Statements and Related
Information. The Subservicer shall deliver to the Servicer, within 120 days
after the end of its fiscal year, a copy of its annual financial statements,
such financial statements to be audited if then customarily audited, and with
respect to any unaudited financial statements provided by the Subservicer, which
financial statements shall be certified by the Subservicer's chief financial
officer to be true, correct and complete. The Subservicer shall notify the
Servicer, as of the Closing Date, of the Subservicer's fiscal year and shall
notify the Servicer promptly after any change thereof.
Section 5.6 No Advancing. Under no circumstance shall the
Subservicer make or have an obligation to make any Advances. The Subservicer
will promptly notify the Servicer in accordance with the Task Description if the
Subservicer believes that a Servicing Advance is or will be required to be made
with respect to any Mortgage Loan.
Section 5.7 Inspection and Audit Rights. The Subservicer agrees
that, on reasonable prior notice, it will permit any representative of the
Servicer, during the Subservicer's normal business hours, to examine all the
books of account, records, reports and other papers of the Subservicer relating
to the Mortgage Loans, to make copies and extracts therefrom, to cause such
books to be audited by accountants selected by the Servicer, and to discuss
matters relating to the Mortgage Loans with the Subservicer's officers,
employees and accountants (and by this provision the Subservicer hereby
authorizes such accountants to discuss with such representatives such matters),
all at such reasonable times and as often as may be reasonably requested. Any
expense incident to the exercise by the Servicer of any right under this Section
shall be borne by the Servicer except to the extent that the Servicer reasonably
determines pursuant to such review that the accounting and record keeping by the
Subservicer materially deviates from generally accepted accounting principles
and the Servicing Standard, as applicable, in which event such expenses shall be
borne by the Subservicer.
Section 5.8 Authorized Officer. Subservicer shall provide Servicer
promptly with a written list of authorized Subservicing Officers of Subservicer,
which may be amended from time to time by written notice from Subservicer to
Servicer; provided, however, that such list shall denote one principal
Subservicing Officer responsible for the Subservicer's obligations under this
Agreement.
Section 5.9 Additional Reports. Subservicer shall produce such
additional written reports with respect to the Mortgage Loans as the Servicer
may from time to time reasonably request in order to comply with its obligations
under the Pooling and Servicing Agreement, provided that if any Person is
requesting the report from the Servicer pursuant to the Pooling and Servicing
Agreement, such report constitutes an ad-hoc non-standard report, no additional
recalculation or combinations of the information provided by the Subservicer are
required for the Servicer to produce such report and the Servicer receives a fee
for the production of such report, then the Servicer shall pay such fee to the
Subservicer.
Section 5.10 Modifications, Waivers, Consents and Amendments.
Proposed modifications, waivers, consents or amendments shall be handled as set
forth on Exhibit B-6.
Section 5.11 Prepayment Interest Shortfalls. For any Mortgage Loan,
Subservicer shall require Principal Prepayments to be made so as not to cause a
Prepayment Interest Shortfall. If the mortgage loan documents of a related
Mortgage Loan do not allow Subservicer to require Principal Prepayments (or
condition acceptance of Principal Prepayments) on a date that will avoid a
Prepayment Interest Shortfall ("Non-Mandatory Prepayment Date Mortgage Loan"),
then Subservicer shall pay to Servicer on the date specified in Section
2.1(e)(2) of this Agreement, in addition to all other amounts due for such
Principal Prepayment, an amount payable by the Subservicer from its own funds
without reimbursement therefor equal to any Prepayment Interest Shortfall that
results from such Principal Prepayment; provided, however, that for all
Principal Prepayments received during any Due Period, the Subservicer shall in
no event be required to remit an amount greater than the amount of the aggregate
of the Subservicing Fees for such Due Period.
Section 5.12 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Backup Certification. The Subservicer
shall execute and deliver to the Servicer a backup certification substantially
in the form set forth in Exhibit C hereto ("Backup Certification") in support of
any certification obligation to which the Servicer may become subject under the
Pooling and Servicing Agreement in connection with the certification
requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated by the Commission thereunder (including any interpretations thereof
by the staff of the Commission). A Backup Certification shall be so delivered by
the Subservicer (i) not later than March 15 of each year and (ii) within 15 days
following a request therefor made by the Servicer.
Section 5.13 Regulation AB Readiness Certificate. The Subservicer
shall provide to the Servicer an officer's certificate as of September 30 of
each year that confirms that the Subservicer has engaged a registered public
accounting firm to issue the attestation report on the Subservicer'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 Section 5.3.
ARTICLE VI
SUBSERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
Section 6.1 Subservicer Default. Each of the following events shall
constitute a "Subservicer Default" hereunder:
(i) any failure by the Subservicer to remit to the Servicer when
due any amount required to be remitted under this Agreement (unless the
Subservicer cures such failure within one Business Day; provided,
however, that the Subservicer shall not have such cure right (i) with
respect to more than two such failures in any one calendar year or (ii)
if the related funds are generally to be included in amounts that the
Servicer is required to remit to the Trustee or Paying Agent under the
Pooling and Servicing Agreement and the failure would result in such
funds being received by the Servicer later than the Business Day that
immediately precedes the date on which the Servicer is so required to
remit such funds to the Trustee or Paying Agent); or
(ii) any failure by the Subservicer duly to observe or perform
in any material respect any of the covenants or agreements on the part
of the Subservicer contained in this Agreement, which failure continues
unremedied for a period of twenty-five (25) days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Subservicer by the Servicer; provided, however,
that to the extent the Servicer determines, in its reasonable
discretion, that the Subservicer is in good faith attempting to remedy
such failure and the Certificateholders shall not be materially and
adversely affected thereby, such cure period may be extended to the
extent necessary to permit the Subservicer to cure such failure;
provided, further, that such cure period may not exceed sixty (60) days;
and; provided, further that if such failure to perform on the part of
the Subservicer results in an Event of Default by the Servicer under the
Pooling and Servicing Agreement, then the cure periods described in this
Section 6.1(ii) shall not apply, and if such failure to perform on the
part of the Subservicer constitutes an event that with notice or the
passage of time would result in an Event of Default by the Servicer
under the Pooling and Servicing Agreement, then any cure periods that
otherwise apply shall terminate on the date that is seven Business Days
before the date when such an Event of Default by the Servicer would
arise; or
(iii) any breach of the representations and warranties made
pursuant to Section 2.4 hereof that materially and adversely affects the
interest of the Servicer and that continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
breach, requiring the same to be remedied, shall have been given by the
Servicer to Subservicer; provided, however, that to the extent the
Servicer determines in its reasonable discretion that the Subservicer is
in good faith attempting to remedy such breach and the
Certificateholders shall not be materially and adversely affected
thereby, such cure period may be extended to the extent necessary to
permit the Subservicer to cure such breach; provided, however, that such
cure period may not exceed sixty (60) days; and provided, further, that
if such failure to perform on the part of the Subservicer results in an
Event of Default (or an event that with notice or the passage of time
would constitute such an Event of Default) by the Servicer under the
Pooling and Servicing Agreement, then the cure periods described in this
Section 6.1(iii) shall not apply; or
(iv) Fitch shall qualify, lower or withdraw the outstanding
rating of any Class of Certificates because the prospective financial
condition or mortgage loan servicing capacity of the Subservicer is
insufficient to maintain such rating; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Subservicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60)
days; or
(vi) the Subservicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or
substantially all of its property; or
(vii) the Subservicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations, or take any corporate
action in furtherance of the foregoing; or
(viii) Fitch cites concerns with the quality of the subservicing
of the Mortgage Loans as a material contributing factor in Fitch's
placement of any Class of Certificates on "watch" or similar status and
the circumstances giving rise to such concerns are not remedied to the
satisfaction of Fitch and the Servicer within 60 days; or
(ix) The Subservicer has been removed from S&P's Select Servicer
List as a U.S. Commercial Mortgage Master Servicer and any of the
ratings assigned to the Certificates have been qualified, downgraded or
withdrawn in connection with such removal; or
(x) the failure of the Subservicer to comply with any of the
requirements under Section 5.3 of this Agreement applicable to such
Subservicer, including the failure to deliver any reports or
certificates at the time such report or certification is required under
Section 5.3; or
(xi) the failure of the related Subservicer to comply with any
requirements to deliver any items required by Items 1122 and 1123 of
Regulation AB under any other pooling and servicing agreement relating
to any other series of certificates offered by the Depositor.
Subservicer agrees to give prompt written notice to Servicer upon
the occurrence of any Subservicer Default. In addition, the Servicer agrees to
give notice to Subservicer with reasonable promptness following notice from a
Rating Agency to the Servicer to the effect that the quality of the subservicing
of the Mortgage Loans presents rating concerns or would present rating concerns
if not remedied.
If the Subservicer fails to remit to the Servicer when due any
amount required to be remitted under this Agreement (whether or not such failure
constitutes a Subservicer Default), then interest shall accrue on the amount
that was required to be remitted, and the Subservicer shall promptly pay such
interest to the Servicer, at a per annum rate equal to the Prime Rate from and
including the date when such remittance was required to be made to but excluding
the day when such remittance is actually made.
Section 6.2 Termination.
(a) The obligations and responsibilities of the Subservicer as
created hereby (other than as expressly provided herein) shall terminate upon
the earliest to occur of (i) the receipt by the Subservicer of the Servicer's
written notice of such termination delivered at the Servicer's option following
the occurrence of a Subservicer Default, (ii) the final payment or other
liquidation of the last Mortgage Loan remaining outstanding, (iii) the
occurrence of a Subservicer Default under Section 6.1(x) or (xi) upon the
occurrence of which either the Servicer or the Depositor shall immediately
terminate the Subservicer, which termination shall be deemed for cause (each, a
"Subservicing Termination Date"). From and after the Subservicing Termination
Date, the Subservicer shall, if applicable, continue to cooperate in the
transfer of subservicing, including the delivery of files and transfer of
accounts as contemplated hereby but shall have no further obligations under this
Agreement.
(b) Without limiting the foregoing, the Subservicer agrees that the
rights and duties of the Servicer under this Agreement and the Pooling and
Servicing Agreement may be assumed by a successor Servicer or the Trustee upon a
termination of the Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement.
(c) Subservicer's rights and obligations shall expressly survive a
termination of Servicer's servicing rights pursuant to the Pooling and Servicing
Agreement (except a termination of Servicer caused by a Subservicer Default). In
the event of such a termination, any successor Servicer or the Trustee (if it
assumes the servicing obligations of the Servicer) shall be deemed to
automatically have assumed and agreed to this Agreement without further action
upon becoming the successor Servicer.
(d) Upon the request of Subservicer, the successor Servicer or
Trustee, as applicable, shall confirm to Subservicer in writing that this
Agreement remains in full force and effect. Upon the request of the successor
Servicer or Trustee, Subservicer shall confirm to the successor Servicer or
Trustee, as applicable, in writing that this Agreement remains in full force and
effect.
(e) The Servicer's reimbursement obligations to the Subservicer
hereunder shall survive the Subservicing Termination Date, but only to the
extent such reimbursement or such Subservicing Fee relates to a period prior to
the termination of all of the Subservicer's obligations hereunder.
(f) The rights of Servicer to terminate Subservicer upon the
occurrence of a Subservicer Default shall be in addition to any other rights
Servicer may have at law or in equity, including injunctive relief or specific
performance.
Section 6.3 Assignment by Subservicer. This Agreement and the rights
and benefits hereunder of the Subservicer shall not be assignable, and the
duties and obligations hereunder of such party shall not be delegable; provided,
however, that (i) the Subservicer may assign, sell or transfer its rights and
duties under this Agreement (in whole and not in part) to a parent company of
Subservicer or a wholly-owned subsidiary or affiliate of such party, or a
successor by merger of Subservicer; (ii) the Subservicer shall be entitled to
employ subcontractors to the extent provided in Article VII and (iii) the
Subservicer shall be entitled to assign, sell or transfer its rights and duties
under this Agreement (in whole and not in part) with approval of the Servicer,
such approval not to be unreasonably conditioned or delayed, provided that (in
the case of this subclause (iii)) the proposed successor to the Subservicer: (a)
either (x) has a commercial mortgage loan servicing capability and financial
condition as are satisfactory to the Servicer or (y) is then: (I) serving as a
subservicer or master servicer in good standing for mortgage loans with an
aggregate original principal amount in excess of $1,000,000,000, which loans are
included in transactions involving commercial mortgage pass through certificates
rated by the Rating Agencies, (II) solvent with a net worth no less than
$5,000,000 and (III) is identified in a written notice delivered to Servicer not
less than ten Business Days prior to the assignment; and (b) is appropriately
qualified to do business and/or is licensed in all jurisdictions where such
qualification and/or licensing is necessary to service the Mortgage Loans. Any
such assignment under this Section 6.3 (other than one described in clause (ii)
above) shall (i) not be effective until such successor Subservicer enters into a
written agreement reasonably satisfactory to Servicer agreeing to be bound by
the terms and provisions of this Agreement (but not altering the obligations
under this Agreement); and (ii) not relieve the assigning Subservicer of any
duties or liabilities arising or incurred prior to such assignment. The
Subservicer shall pay or caused to be paid any costs or expenses incurred in
connection with such assignment. Any assignment or delegation or attempted
assignment or delegation in contravention of this Agreement shall be null and
void.
Section 6.4 Resignation of Subservicer. The Subservicer shall not
resign from the obligations and duties hereby imposed on it (except as otherwise
permitted under Section 6.3) unless it determines that the Subservicer's duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by it
and provides 30 days advance notice thereof to the Servicer. Any such
determination permitting the resignation of the Subservicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Servicer. No such
resignation shall become effective until the transfer of subservicing
contemplated by Sections 6.5(a) through (e) is complete.
Section 6.5 Post-Termination Obligations.
(a) In the event of a termination of the Subservicer's rights and
duties hereunder due to a Subservicer Default, any assignment of the
Subservicer's rights and duties hereunder permitted under Section 6.3 or any
resignation of the Subservicer from its rights and duties hereunder permitted
under Section 6.4, as the case may be, the Subservicer shall promptly (i)
deliver the Servicing Documents to the Servicer or a Successor Subservicer, as
directed by the Servicer, (ii) remit to or at the direction of the Servicer, by
wire transfer of immediately available funds, all cash held by the Subservicer
with respect to the Mortgage Loans and (iii) if so requested by the Servicer,
assign to the Servicer or a Successor Subservicer, as directed by the Servicer,
and in such event the Servicer shall assume, or cause the Successor Subservicer
to assume, all service contracts related to the Mortgage Loans transferred
thereon but only to the extent such contracts are assignable and the required
consents (if any) to such assignments have been obtained. The Subservicer shall
use all reasonable efforts to obtain the consents required to effect such
assignments.
(b) On and after the Subservicing Termination Date, the date of any
assignment of the Subservicer's rights and duties hereunder in accordance with
Section 6.3 or the date of any resignation by the Subservicer from its rights
and duties hereunder in accordance with Section 6.4, as the case may be, the
Subservicer shall promptly endorse and send to or at the direction of the
Servicer via overnight mail or delivery service any checks or other funds in
respect of the Mortgage Loans which are received by the Subservicer.
(c) The Subservicer shall provide to the Servicer promptly (but in
no event later than ten (10) Business Days) after the Subservicing Termination
Date, the date of any assignment of the Subservicer's rights and duties
hereunder in accordance with Section 6.3 or the date of any resignation by the
Subservicer from its rights and duties hereunder in accordance with Section 6.4,
as the case may be, the following information, in each case as of such date: (a)
a ledger accounting itemizing the dates and amounts of all payments made,
received or applied by the Subservicer with regard to the Mortgage Loans,
further itemizing principal and interest payments, tax payments, special
assessments, hazard insurance, mortgage insurance premiums, ground rents, if
any, and all other payments and (b) a current trial balance for such Mortgage
Loan.
(d) On a date to be agreed upon by the Subservicer and the Servicer,
but not later than the Business Day following the Subservicing Termination Date,
the date of any assignment of the Subservicer's rights and duties hereunder in
accordance with Section 6.3 or the date of any resignation by the Subservicer
from its rights and duties hereunder in accordance with Section 6.4, as the case
may be, the Subservicer shall commence and continue diligently to completion at
its own expense, to notify the [Mortgagors] under the Mortgage Loans of the
address to which payments on such Mortgage Loans should be sent after the
Subservicing Termination Date, the date of any assignment of the Subservicer's
rights and duties hereunder in accordance with Section 6.3 or the date of any
resignation by the Subservicer from its rights and duties hereunder in
accordance with Section 6.4, as the case may be; provided, however, that in any
event, Subservicer shall be obligated to notify [Mortgagors] within seven (7)
Business Days following the Subservicing Termination Date, the date of any
assignment of the Subservicer's rights and duties hereunder in accordance with
Section 6.3 or the date of any resignation by the Subservicer from its rights
and duties hereunder in accordance with Section 6.4, as the case may be.
(e) The Subservicer shall promptly forward to the Servicer, at the
Subservicer's expense all Borrower correspondence, insurance notices, tax bills
or any other correspondence or documentation related to any Mortgage Loan which
is received by the Subservicer after the Subservicing Termination Date, the date
of any assignment of the Subservicer's rights and duties hereunder in accordance
with Section 6.3 or the date of any resignation by the Subservicer from its
rights and duties hereunder in accordance with Section 6.4, as the case may be.
(f) In connection with any termination of the Subservicer's rights
and duties hereunder due to a Subservicer Default, any assignment of the
Subservicer's rights and duties hereunder permitted under Section 6.3 or any
resignation of the Subservicer from its rights and duties hereunder permitted
under Section 6.4, as the case may be, the Subservicer shall otherwise cooperate
in the orderly transfer of the servicing of the Mortgage Loans and shall forward
to the Servicer and any Successor Subservicer such documents as it may receive
from time to time regarding any Mortgage Loan transferred and provide such other
assistance as may reasonably be required by the Servicer or any Successor
Subservicer regarding such transfer.
(g) In connection with any termination of the Subservicer's rights
and duties hereunder due to a Subservicer Default, any assignment of the
Subservicer's rights and duties hereunder permitted under Section 6.3 or any
resignation of the Subservicer from its rights and duties hereunder permitted
under Section 6.4, as the case may be, the Subservicer shall be entitled to all
fees, compensation, interest and earnings on the Mortgage Loans to which it is
entitled and that accrued through the date of termination, assignment or
resignation, as the case may be.
Section 6.6 Additional Terminations. Notwithstanding any provision
herein to the contrary, this Agreement shall terminate with respect to any
Mortgage Loan if and when (i) such Mortgage Loan becomes a Specially Serviced
Loan or an REO Loan (provided that this Agreement shall resume as to such
Mortgage Loan if and when such Mortgage Loan becomes a Corrected Mortgage Loan)
or (ii) such Mortgage Loan is sold or otherwise disposed of by or on behalf of
the Trust. In the event of such termination, (i) the Subservicer shall comply
with Section 6.5 as if a Subservicer Default had occurred, except that such
Section shall be construed to relate only to such Mortgage Loan and references
therein to Subservicing Termination Date shall be construed to mean the date of
such termination, and (ii) the Subservicer shall cooperate in the orderly
transfer of the servicing of such Mortgage Loan and shall forward to the
Servicer such documents as it may receive from time to time with respect thereto
and provide such other assistance as may reasonably be required by the Servicer
with respect thereto. The Subservicer shall be entitled to all fees,
compensation, interest and earnings on such Mortgage Loan (to which the
Subservicer is otherwise entitled hereunder) accrued through the date of
termination of its obligations and rights with respect to such Mortgage Loan
under this Agreement, except that the Servicer shall be entitled to any and all
fees actually collected in connection with the defeasance of any Mortgage Loan.
If a Mortgage Loan subsequently becomes a Corrected Mortgage Loan, then the
Subservicer shall promptly resume the servicing of such Mortgage Loan in
accordance with the terms hereof.
ARTICLE VII
SUBCONTRACTORS
Without prior notice to or the prior written consent of the
Servicer, the Subservicer shall be permitted to employ, at its own expense,
subcontractors to perform selected services (such as the engagement of tax
monitoring services, property inspections, etc.) in connection with
Subservicer's performance of the Services for the Mortgage Loans; provided,
however, that: (1) the Subservicer shall remain fully liable at all times for
the timely performance of all Services and for all other obligations hereunder;
(2) the terms of such an arrangement shall not be binding upon the Servicer or
any successor primary servicer or subservicer of the Mortgage Loans; (3) no such
arrangement shall obligate the Servicer to communicate or deal with any Person
under this Agreement other than the Subservicer; (4) no such arrangement shall
result in the delegation by the Subservicer of its duty to make any
recommendation for the granting or withholding of any consent or waiver or the
making of any other decision on the part of the holder of any Mortgage Loan; (5)
such arrangements taken together shall not result in the delegation by the
Subservicer of substantially all of its duties hereunder to any one Person or
group of Affiliated Persons; and (6) such arrangements are consistent with
Section 3.01(c)of the Pooling and Servicing Agreement.
ARTICLE VIII
SUBSERVICER TO HOLD PROPERTY FOR THE SERVICER
All records relating to the Mortgage Loans held by the Subservicer,
including but not limited to the Subservicer Servicing Documents, mortgage
servicing documents, books, computer tapes and other documents and records
(except for microfilm records) as well as any reproductions or copies of such
records furnished for the purposes of performing Services from the Cut-off Date
are, and shall continue at all times to be, held by the Subservicer for the
benefit of the Servicer and shall not be released, disseminated or otherwise
made available to third parties without the prior written consent of the
Servicer.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Subservicer's Indemnity.
(a) The Subservicer shall indemnify the Servicer, its officers,
employees and agents against, and hold the Servicer harmless from, any and all
losses, liabilities, expenses, claims, demands, costs, or judgment of any type
against the Servicer arising out of or related to (i) a negligent or willful
failure of the Subservicer or any Person hired by the Subservicer to perform
properly any of the Services to be performed by the Subservicer pursuant to the
Payment and Collection Description, the Payment and Loan Status Reports and Task
Description, (ii) any willful misfeasance, bad faith or negligence in the
performance of its obligations under this Agreement, or (iii) breach of any of
the Subservicer's representations and warranties hereunder; provided, however,
that the Subservicer shall not be required to indemnify the Servicer, its
officers, employees or agents against or hold the Servicer, its officers,
employees or agents harmless from any losses to the extent that such loss is
caused by the actions of the Servicer, its officers, employees or agents in
violation of the Servicer's duties under this Agreement or under the Pooling and
Servicing Agreement (except to the extent that such failure was caused by the
Subservicer's failure to perform its obligations hereunder). The indemnification
provided under this Section 9.1 shall survive the Subservicing Termination Date.
The Servicer shall promptly notify the Subservicer if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans entitling the
Servicer to indemnification hereunder. Any failure to so notify the Subservicer
shall not affect any of the Servicer's rights to indemnification.
(b) Neither the Subservicer nor any of the directors, officers,
employees or agents of the Subservicer shall be under any liability to the
Servicer, the holders of the Certificates, the Depositor, the Trustee, [the
Paying Agent] or any other Person for any action taken or for refraining from
the taking of any action in good faith and using its reasonable business
judgment pursuant to this Agreement, or for errors in judgment; provided that
this provision shall not protect the Subservicer or any such person against any
breach of a covenant, representation or warranty contained herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in its performance of duties or by reason of reckless
disregard for its obligations and duties under this Agreement. The Subservicer
and any director, officer, employee or agent of the Subservicer 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.
Section 9.2 Servicer's Indemnity.
(a) The Servicer shall use all reasonable efforts to obtain the
benefits of the rights of indemnification in favor of Servicer contained in the
Pooling and Servicing Agreement on behalf of the Subservicer and the
Subservicer's agents, employees and subcontractors insofar as such
indemnification relates to losses, liabilities, expenses, claims, demands, costs
or judgments against the Subservicer arising out of or related to the
Subservicer's performance hereunder.
(b) The Servicer shall indemnify the Subservicer, its officers,
employees and agents against, and hold the Subservicer harmless from, any and
all losses, liabilities, expenses, claims, demands, costs, or judgment of any
type against the Subservicer arising out of or related to the Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties hereunder;
provided, however, that the Servicer shall not be required to indemnify the
Subservicer, its officers, employees or agents against or hold the Subservicer,
its officers, employees or agents harmless from any losses to the extent that
such loss is caused by the actions of the Subservicer, its officers, employees
or agents in violation of the Subservicer's duties under this Agreement (except
to the extent that such failure was caused by the Servicer's failure to perform
its obligations hereunder). For the avoidance of doubt, the Servicer shall not
have any liability under the immediately preceding sentence for any loss that is
caused by any action that is required to be taken by the Servicer under the
Pooling and Servicing Agreement or the Servicer's failure to take any action
that the Servicer is required to refrain from taking under the Pooling and
Servicing Agreement (but this sentence shall not be construed to limit the
rights of the Subservicer under subsection (a)). The Subservicer shall promptly
notify the Servicer if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans entitling the Subservicer to indemnification
hereunder. Any failure to so notify the Servicer shall not affect any of the
Subservicer's rights to indemnification.
The rights of the Subservicer provided under this Section 9.2 shall
survive the Subservicing Termination Date.
ARTICLE X
MISCELLANEOUS
Section 10.1 Severability. If any term, covenant, condition or
provision hereof is unlawful, invalid, or unenforceable for any reasons
whatsoever, and such illegality, invalidity, or unenforceability does not affect
remaining part of this Agreement, then all such remaining parts hereof shall be
valid and enforceable and have full force and effect as if the invalid or
unenforceable part had not been included.
Section 10.2 Rights Cumulative; Waivers. The rights of each of the
parties under this Agreement are cumulative and may be exercised as often as any
party considers appropriate. The rights of each of the parties hereunder shall
not be capable of being waived or amended other than by an express waiver or
amendment in writing. Any failure to exercise (or any delay in exercising) any
of such rights shall not operate as a waiver or amendment of that or any other
such right. Any defective or partial exercise of any of such right shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
estop or preclude such party from exercising any such right or constitute a
suspension or any waiver of any such right.
Section 10.3 Headings. The headings of the Sections and Articles
contained in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision hereof.
Section 10.4 Construction. Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to include the
plural of such noun or pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender. This Agreement is the result
of arm's-length negotiations between the parties and has been reviewed by each
party hereto and its counsel. Each party agrees that any ambiguity in this
Agreement shall not be interpreted against the party drafting the particular
clause which is in question.
Section 10.5 Successors and Assigns. This Agreement and the terms,
covenants, conditions, provisions, obligations, undertakings, rights and
benefits hereof, shall be binding upon, and shall inure to the benefit of, the
undersigned parties and their respective successors and permitted assigns.
Section 10.6 Prior Understandings. This Agreement supersedes any and
all prior discussions and agreements between or among the Subservicer and the
Servicer with respect to the Servicing of the Mortgage Loans and the other
matters contained herein. This Agreement, together with the Pooling and
Servicing Agreement, contain the sole and entire understanding between the
parties hereto with respect to the transactions contemplated herein.
Section 10.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall constitute one and the same
instrument. Any party hereto may execute this Agreement by signing any such
counterpart.
Section 10.8 Governing Laws. THIS AGREEMENT SHALL BE GOVERNED BY AND
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 SUCH LAWS WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 10.9 Notices. Unless otherwise provided for herein, all
notices and other communications required or permitted hereunder shall be in
writing (including a writing delivered by facsimile transmission) and shall be
deemed to have been duly given (a) when delivered, if sent by registered or
certified mail (return receipt requested), if delivered personally or by
facsimile or (b) on the second following Business Day, if sent by overnight mail
or overnight courier, in each case to the parties at the following addresses (or
at such other addresses as shall be specified by like notice);
If to the Servicer:
at the address set forth in Section 11.04 of the Pooling
and Servicing Agreement;
If to the Subservicer:
CWCapital LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President-Loan
Servicing (▇▇▇▇▇▇▇ ▇▇▇▇)
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
CWCapital LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Section 10.10 Amendment. In the event that the Pooling and Servicing
Agreement is amended, this Agreement shall be deemed to have been amended and to
the extent necessary to reflect such amendment to the Pooling and Servicing
Agreement, but no such amendment to the Pooling and Servicing Agreement or
deemed amendment to this Agreement shall increase the obligations or decrease
the rights of Subservicer under this Agreement without its express written
consent which consent shall not be unreasonably withheld or delayed. This
Agreement may not otherwise be altered or modified except by a written
instruments executed by the party against whom enforcement is sought.
Section 10.11 Other. This Agreement shall not be construed to grant
to any party hereto any claim, right or interest in, to or against the trust
fund created pursuant to the Pooling and Servicing Agreement or any assets of
such trust fund.
Section 10.12 Benefits of Agreement. Nothing in this Agreement,
express or implied, shall be construed to grant to any Borrower or other Person,
other than the parties to this Agreement and the parties to the Pooling and
Servicing Agreement, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement.
[signature page follows]
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto by an authorized representative, all as of the day and
year first above written.
MIDLAND LOAN SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
CWCAPITAL LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
SCHEDULE I
LOAN SCHEDULE
Prospectus Cut-off Date Sub Servicing Fee
Tab Number Loan Name Balance Rate (basis points)
---------- --------- ------- -------------------
Galleria Corporate Centre $55,000,000 2.0 basis points
Marriott Resort Clearwater
Beach on Sand Key $19,962,537 3.0 basis points
NL Ventures $19,495,000 3.0 basis points
Copper Pointe Apartments $17,000,000 3.0 basis points
▇▇▇▇ ▇▇▇▇ Medical Center $11,990,550 3.0 basis points
Heritage Place $9,967,037 3.0 basis points
Crossroads at Citadel $7,824,914 5.0 basis points
The Drexel Building $6,700,000 5.0 basis points
Dundee Park $6,237,344 5.0 basis points
EXHIBIT A
Pooling and Servicing Agreement
EXHIBIT B
Exhibit B-1: Form of Day One Report
Exhibit B-2: Form of Monthly Remittance Report
Exhibit B-3: Forms of Loan Status Reports
Exhibit B-4: Form of Monthly Report on Special Requests
Exhibit B-5: Task Description
Exhibit B-6: Consent Procedures
EXHIBIT B-1
Form of Day One Report
--------------------------------------------------------------------------------
Sub-Servicer
Name
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Pool
Name
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
For Payment
Due:________________
--------------------------------------------------------------------------------
Servicer Sub- Beginning Actual Scheduled Scheduled Scheduled Ending Interest Sub-Service
Loan # Servicer Principal Paid to Monthly Principal Interest Principal Rate Fee Rate
Loan # Balance Date P&I Payment Payment Balance
Payment
--------------------------------------------------------------------------------------------------------------------------
$ $ $ - $ $ 0.000% 0.000%
- - - -
$ $ $ - $ $ 0.000% 0.000%
- - - -
$ $ $ - $ $ 0.000% 0.000%
- - - -
--------------------------------------------------------------------------------------------------------------------------
TOTAL $ $ $ - $ $
- - - -
--------------------------------------------------------------------------------------------------------------------------
Servicer Sub- Pre- Partial Full Pre- Prepay
Loan # Service payment Prepay- payment ment
Fee Penalty ment Date
---------------------------------------------------------------
$ $ $ $
- - - -
$ $ $ $
- - - -
$ $ $ $
- - - -
-
---------------------------------------------------------------
TOTAL $ $ $ $
- - - -
---------------------------------------------------------------
Prepared By:_________________
Title:________________________
EXHIBIT B-2
Form of Monthly Remittance Report
Sub-Servicer Name
Address
Pool Name
Monthly Remittance Report -
mm/dd/yy
Servicer Sub-Servicer Beginning Gross Net Principal Gross Interest Sub-Service ▇▇▇
▇▇▇▇ # ▇▇▇▇ # ▇▇▇▇▇▇▇▇▇ ▇&▇ Payment Payment Interest Basis Fee Amount Interest
Balance Payment Payment
----------------------------------------------------------------------------------------------------------------------------
$ $ $ - $ 0.000% $ $
- - - - -
$ $ $ - $ 0.000% $ $
- - - - -
$ $ $ - $ 0.000% $ $
- - - - -
----------------------------------------------------------------------------------------------------------------------------
$ $
TOTAL REMITTANCE $ $ $ - $ 0.00% - -
----------------------------------------------------------------------------------------------------------------------------
Servicer Late Charge Total Net Ending Payment Paid to
Loan # Payment Remittance Principal Date Date
Balance Rec'd
FromBorr
ower
----------------------------------------------------------------------------
$ $
- -
$ $
- -
$ $
- -
----------------------------------------------------------------------------
$ $
TOTAL REMITTANCE - -
----------------------------------------------------------------------------
Prepared By:_________________
Title:________________________
EXHIBIT B-3
Forms of Loan Status Reports
Exhibit B-3(a): Real estate tax monitoring report
Exhibit B-3(b): Insurance monitoring report
Exhibit B-3(c): UCC monitoring report
EXHIBIT B-3(a)
(Real estate tax monitoring report)
--------------------------------------------------------------------------------
Pool Name
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TAX MONITORING REPORT
DATED AS OF (month end)
--------------------------------------------------------------------------------
Subservicer:
------------------------------------------------------------------------------------------------------------------------------------
Servicer Sub-Servicer Property Parcel Taxing Last Tax Last Date Next Tax Next Tax
Loan # Loan # Borrower Name Address Number Authority Amount Paid Tax Paid Amount Due Due Date
------------------------------------------------------------------------------------------------------------------------------------
Prepared By:_________________
Title:________________________
EXHIBIT B-3(b)
(Insurance monitoring report)
--------------------------------------------------------------------------------
Pool Name
--------------------------------------------------------------------------------
INSURANCE MONITORING REPORT
DATED AS OF (month end)
--------------------------------------------------------------------------------
Subservicer:
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Servicer Sub-Servicer ▇▇▇▇. Expir. Type of Pol. Prem. Carrier
Loan # Loan # Name Date Coverage Number Amount
-----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Servicer Loss Payee Meets Agent Agent Agent Policy Loan Coverage
Loan # Reflects Insurance City State Amount Bal. Difference
Trust Rating
(Y or N) (Y or N)
---------------------------------------------------------------------------------------------
Prepared By:_________________
Title:________________________
EXHIBIT B-3(c)
(UCC monitoring report)
--------------------------------------------------------------------------------
Pool Name
--------------------------------------------------------------------------------
UCC MONITORING REPORT
DATED AS OF (month end)
--------------------------------------------------------------------------------
Subservicer:
-----------------------------------------------------------------------------------------------------------------------------------
Servicer Sub-Servicer Jurisdiction Original Continuation Next
Loan # Loan # Borrower Name (Secretary of Filing Date Filing Number Filing Date
State or County)
-----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT B-4
(Report on Pending Special Requests)
MONTHLY REPORT ON PENDING SPECIAL REQUESTS
Pool Name:
Date:
Subservicer:
Sub-Servicer Master Servicer Property Type of Date Request Status of Anticipated
Loan Number Loan Number Name Request Received Request Close Date
--------------------------------------------------------------------------------------------------
EXHIBIT B-5
TASK DESCRIPTION
SERVICER/SUBSERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-HQ4
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement. In the absence of specific allocation of obligations in this
Agreement, the parties shall work in good faith to allocate
responsibilities in a fair and equitable manner in accordance with this
Agreement and the Pooling and Servicing Agreement.
MASTER SUBSERVICER SPECIAL TRUSTEE
SERVICER SERVICER
-------- ----------- -------- -------
1. Asset Files
Original collateral file (security) X
Authorized parties list for request for release of X X
collateral from Trustee
Establish servicing files criteria X
Establish and maintain servicing files X
Provide access to servicing files and copies of X
servicing files or of specific documents upon
request to the Master Servicer
Request delivery of files from Trustee upon X
request and certification of Subservicer
2. Property Taxes
Monitoring of tax status - Loans with/without X
escrows
Recommendation of payment of taxes - Loans X
with/without escrows
Notification of advance requirement not less than X
3 business days prior to advance being required
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
3. Property Insurance
Monitoring of insurance status - Loans X
with/without escrows
Ensure insurance carrier meets Pooling and X
Servicing Agreement qualifications
Ensure insurance in favor of the Master Servicer X
on behalf of the Trustee
Recommendation of payment or force placement of X
insurance with/without escrow
Notification of advance requirement or force X
placement of insurance not less than 3 business
days prior to advance being required
Payment of insurance - with sufficient escrows X
Payment of insurance or force placement - with X
escrow shortfall
Manage processing of insurance claims in X
accordance with Mortgage Loan documents and the
Pooling and Servicing Agreement
Collection of insurance proceeds X
Consent to application of insurance proceeds X
(except where the lender does not have any
discretion in such application)
4. UCC Continuation Filings
Maintain and monitory tickler system of the X
refiling dates on all Loans
File UCC Continuation Statements X
Pay recording fees X
5. Collection/Deposit/Remittance of P&I payments and Principal Prepayments
Collection and deposit of loan P&I payments and X
Principal Prepayments
Remittance of available Subservicer P&I payments X
(net of Subservicing Fee) to Master Servicer
Remittance of collections to the Trustee X
Remittance of Special Servicer compensation to the X
Special Servicer
Approval of Prepayment Premiums X
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
Provide monthly reconciliation of individual and X
commingled reserves detailing all disbursements
7. Customer Billing, Collection and Customer Service
Contact delinquent borrowers by phone not more X
than 3 days after date of delinquency
Send 30 day delinquent notices X
Send notice of balloon payment to each Borrower X
one year, 180 days and 90 days prior to the
related maturity date
Provide copy of balloon payment notice to Master X
Servicer
8. Escrows
Setup and monitor Escrow Accounts including escrow X
analysis
Pay borrower investment income as required under X
mortgage loan documents or applicable law
Provide monthly reconciliation of individual and X
commingled escrow accounts detailing all
disbursements
Prepare annual escrow analysis X
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and X
telecopy to Master Servicer
Approve payoff calculations and telecopy approval X
to Subservicer within five (5) Business Days
10. Monitoring of Financial and Legal Covenants
Collect annual operating statements, budgets, rent X
rolls and borrower financial statements, as
applicable
No later than three Business Days prior to each X
Distribution Date (except for the first two
Distribution Dates, deliver to the Master Servicer
a CMSA Comparative Financial Status Report (in
each case in the form and containing the
information called for by the version of such
report in effect at the time under the reporting
standards of the CMSA) for each Mortgage Loan or
related Mortgaged Property as of the Determination
Date immediately preceding the preparation of such
report for each of the following three periods:
(a) the most current available year-to-date; (b) each
of the previous two full fiscal years stated separately
(to the extent such information is in the Master Servicer's
possession); and (c) the "base year" (representing the
original analysis of information used as of the
Cut-Off Date)
For each Mortgaged Property, within 25 days after X
receipt by Subservicer of a quarterly operating
statement, if any, commencing with the calendar
quarter ended August 31, 2006, deliver to the
Master Servicer one (1) copy of completed annual
operating statement analysis using the CMSA
Operating Statement Analysis Report (in each case
in the form and containing the information called
for by the version of such report in effect at the
time under the reporting standards of the CMSA)
(in electronic format) as of the end of such
calendar quarter.
For each Mortgaged Property, within 25 days after X
receipt by Subservicer of an annual operating
statement, deliver to the Master Servicer a CMSA
NOI Adjustment Worksheet (but only to the extent
the related Borrower is required by the Mortgage
to deliver and does deliver, or otherwise agrees
to provide and does provide, such information) (in
each case in the form and containing the
information called for by the version of such
report in effect at the time under the reporting
standards of the CMSA) for the related Mortgage
Loan (in electronic format), presenting the
computation to "normalize" the full year net
operating income and debt service coverage numbers
used by the Master Servicer in preparing the CMSA
Comparative Financial Status Report.
Deliver to Master Servicer and the Persons X
identified in (and otherwise in accordance with)
Section 3.13 of the Pooling and Servicing
Agreement copies of any annual, monthly or
quarterly financial statements and rent rolls
collected with respect to the Mortgaged
Properties, in each case within 30 days following
receipt thereof by the Subservicer. As and to the
extent requested by Master Servicer following
request therefor received by Special Servicer,
make inquiry of any Borrower with respect to such
information or as regards the performance of the
related Mortgaged Property in general.
11. Advancing
Determination of Non-Recoverability X
12. Reporting (Electronic mail)
Prepare and deliver to the Master Servicer the Day X
One Report (in the form of and setting the
information called for by Exhibit B-1) on the
first business day of each month
Prepare and deliver to the Master Servicer a X
Monthly Remittance Report (in the form of and
setting the information called for by Exhibit
B-2) for payments received on Mortgage Loans on
each day that funds are required to be wired to
the Master Servicer under Section 2 of this
Agreement
With respect to all modifications, waivers, X
consents or amendments that have been proposed,
prepare and deliver to the Master Servicer a
Monthly Report on Pending Special Requests (in the
form of and setting form the information called
for by Exhibit B-4) on the first business day of
each month
Prepare and deliver to the Master Servicer a CMSA X
Delinquent Loan Status Report (in the form and
containing the information called for by the
version of such report in effect at the time under
the reporting standards of the CMSA) on all
Mortgage Loans on the Subservicer Remittance Date
occurring in each month reflecting information as
of the close of business on the Subservicer
Determination Date occurring in such month
Report of payment/account status (trial X
balance/transaction detail) within 30 days of the
Subservicer Remittance Date occurring in each
month; report to be as of the close of business on
applicable Distribution Date
Cash account reconciliations - Deliver copies of X
monthly bank statements for all deposit, escrow
and reserve accounts
Prepare Loan Status Reports (in the forms of and X
setting the information called for by Exhibit B-3)
in each January, April, July and October of each
year; deliver same to Master Servicer not later
than the Subservicer Remittance Date
Complete and deliver CMSA Loan Setup File (in the X X
form and containing the information called for by
the version of such report in effect at the time
under the reporting standards of the CMS) for
Mortgage Loans in accordance with Pooling and
Servicing Agreement
Complete CMSA Loan Periodic Update File (in the X
form and containing the information called for by
the version of such report in effect at the time
under the reporting standards of the CMSA) for
Mortgage Loans reflecting information as of the
close of business on the Subservicer Determination
Date in each month; deliver same to Master
Servicer not later than the Subservicer Remittance
Date occurring in such month; such report to be in
addition to the Day One Report
Complete CMSA Property File (in the form and X
containing the information called for by the
version of such report in effect at the time under
the reporting standards of the CMSA) for Mortgage
Loans reflecting information as of the close of
business on the Subservicer Determination Date in
each month; deliver same to Master Servicer not
later than the Subservicer Remittance Date
occurring in such month
Complete CMSA Loan Level Reserve/LOC Report (in X
the form and containing the information called for
by the version of such report in effect at the
time under the reporting standards of the CMSA)
for Mortgage Loans reflecting information as of
the close of business on the Subservicer
Determination Date in each month; deliver same to
Master Servicer not later than the Subservicer
Remittance Date occurring in such month
Complete CMSA Servicer Watch List (in the form and X
containing the information called for by the
version of such report in effect at the time under
the reporting standards of the CMSA) for Mortgage
Loans reflecting information (including the
information required under the Pooling and
Servicing Agreement) as of the close of business
on the Subservicer Determination Date in each
month; deliver same to Master Servicer not later
than the Subservicer Remittance Date occurring in
such month
Complete all other CMSA reports (in the form and X
containing the information called for by the
version of each such report in effect at the time
under the reporting standards of the CMSA), other
than the CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, the CMSA
Historical Liquidation Report and the CMSA REO
Status Report, required to be provided by the
Master Servicer under Section 4.02 of the Pooling
and Servicing Agreement, reflecting information as
of the close of business on the Subservicer
Determination Date in each month; deliver same to
Master Servicer not later than the Subservicer
Remittance Date occurring in such month
13. Property Annual Inspections
Conduct site inspection in accordance with X
requirement of Section 3.19 of the Pooling and
Servicing Agreement
Provide one copy of Inspection Reports (in the X
form of and setting forth the information called
for by Exhibit L to the Pooling and Servicing
Agreement) to the Master Servicer and other
Persons identified in Section 3.19 of the Pooling
and Servicing Agreement within 20 days of
completion
14. Preparation of servicing transfer letters X
15. Preparation of IRS Reporting (1098s and 1099s X
or other tax reporting requirements) and delivery
of copies to the Master Servicer by January 31st
of each year
16. Provide annual compliance certificate to Master X
Servicer in accordance with Section 5.3(i) of
this Subservicing Agreement
17. Provide annual independent accountant's report X
to Master Servicer in accordance with Section
5.3(k) of this Subservicing Agreement
18. Compensation
Subservicing Fee X
Investment earnings on Subservicer Collection X
Account, to the extent provided in Section 2.1(e)
of this Agreement
Investment earnings on escrow or reserve accounts X
not payable to borrower, to the extent provided in
Section 2.1(f) of this Agreement
Compensation specific on Exhibit B-6 in connection X
with modifications, waivers, consents or
amendments.
Late charges and default interest to the extent X
collected from borrowers (offsets advance interest
per Pooling and Servicing Agreement with remainder
to Master Servicer)
EXHIBIT B-6
CONSENT PROCEDURES AND COMPENSATION
1. With respect to each proposed modification, waiver, consent or
amendment under any Mortgage Loan that is immaterial, the Subservicer shall
obtain the relevant information from the related borrower, analyze the
transaction and, if the Subservicer (acting in a manner that is consistent with
the Servicing Standard) determines to enter into the transaction, the
Subservicer shall execute and deliver the relevant agreement or other instrument
and otherwise consummate the transaction. In connection with such immaterial
matter, the Subservicer shall be entitled to 100% of any consent or similar fee
actually collected and otherwise payable to the Master Servicer under the
Pooling and Servicing Agreement.
2. With respect to each proposed modification, waiver, consent or
amendment under any Mortgage Loan that is material, the Subservicer (acting in a
manner that is consistent with the Servicing Standard) shall obtain the relevant
information from the related borrower, analyze the request and, unless the
Subservicer determines to disapprove the transaction, deliver to the Master
Servicer a recommendation with an analysis and supporting documentation
information (in such form as may be prescribed in the Pooling and Servicing
Agreement or by the Master Servicer); the Master Servicer shall determine
whether or not to approve any transaction for which the Subservicer has
recommended approval and shall be responsible for submitting a recommendation to
any Person entitled to approve or review the matter under the Pooling and
Servicing Agreement; and, if the Master Servicer approves the transaction, it
shall notify the Subservicer and the Subservicer shall execute and deliver the
relevant agreement or other instrument and otherwise consummate the transaction.
In connection with such material matter, the Subservicer shall be entitled to
50% of any consent or similar fee actually collected (and the Master Servicer
shall be entitled to the remaining portion (if any) of such consent or similar
fee, except to the extent that such remaining portion is payable to a third
party under the terms of the Pooling and Servicing Agreement). The Subservicer
shall have sole discretion to disapprove a modification, waiver, consent or
amendment that is material.
3. All matters listed below as Material Decisions are hereby deemed to be
material. All matters listed below as Immaterial Decisions are hereby deemed to
be immaterial. With respect to any matter that is not listed as a Material
Decision or an Immaterial Decision, the Subservicer shall notify the Master
Servicer of a preliminary determination of whether the matter is material or
immaterial, the Master Servicer shall have 5 business days to disagree with such
determination. Unless the Master Servicer disagrees, the matter shall be
considered material or immaterial according to the preliminary determination. If
the Master Servicer disagrees, the matter shall be considered material or
immaterial according to the Master Servicer's determination.
4. Notwithstanding the foregoing, the Master Servicer shall alone make any
determination to grant or withhold approval of any defeasance of the Mortgage
Loan in whole or in part, shall process the defeasance and shall be entitled to
the entirety of any fees payable by the borrower in connection with such a
defeasance.
5. For purposes of the foregoing, for material decisions, if the fee
chargeable to the borrower in connection with any proposed modification, waiver,
consent or amendment is not prescribed in the mortgage loan documents, the
Master Servicer shall have the right to consent to the amount of the fee to be
charged.
6. The Subservicer shall provide to the Master Servicer, quarterly on the
Subservicer Remittance Date in January, April, July and October of each year, a
report in form of Exhibit B-4 to this Agreement setting forth the information
called for by such form with respect to (i) all immaterial decisions that are
pending but have not yet been consummated, and all decisions that are pending
but have not yet been consummated under Item 5(b) above, (ii) all immaterial
decisions, and all decisions under Item 5(b), that have been consummated since
the prior such report and (iii) all material matters that were disapproved by
the Subservicer.
Each of the following Items 1 through 10 shall constitute a "Material Decision"
for purposes of this Agreement:
1. any modification, waiver, consent or amendment under any Mortgage Loan
requiring the consent or approval of the Special Servicer or other Person
under the Pooling and Servicing Agreement
2. consent or approval of any waiver of any due-on-sale provision or of any
assignment and assumption of the Mortgaged Property
3. consent or approval of any assignment of direct or indirect ownership
interests in the Mortgaged Property or in the mortgagor not expressly
permitted in the mortgage loan documents
4. consent or approval of any waiver of a due-on-encumbrance provision or of
the entering into any additional indebtedness by the mortgagor.
5. any determination of whether or not to release any condemnation proceeds
or proceeds of any casualty insurance policy to the mortgagor or another
Person
6. waiver of any default interest or late payment charge under the Mortgage
Loan
7. approval of any provisions regarding the establishment, maintenance or
termination of any reserve fund, escrow account, letter of credit or other
additional collateral
8. approval of any draw on or release of any letter of credit or other
additional collateral under the Mortgage Loan
9. any approval of a new, modified, terminated or amended lease for more than
20% of the net rentable area of the property or 10,000 square feet
(whichever is less)
Each of the following Items 1 through 4 shall constitute an "Immaterial
Decision" for purposes of this Agreement (provided that such action (x) would
not in any way affect a payment term of the Certificates, (y) would not
constitute a "significant modification" of the applicable mortgage loan pursuant
to Treasury Regulations Section 1.860G-2(b) and would not otherwise (i) endanger
the status of any portion of the Trust Fund for which a REMIC election has been
made as a REMIC or (ii) result in the imposition of a tax of any nature upon all
or any portion of the Trust Fund and (z) agreeing to such modification, waiver
or amendment would be consistent with the Servicing Standard):
1. waiver of the timing of receipt of financial statements from a borrower
2. any release of a non-material parcel or other portion of the Mortgaged
Property if the release is expressly permitted under the Mortgage Loan
documents
3. a waiver of a minor covenant default such as fulfillment of notice
requirements where the borrower complied with the substance of an
obligation and a lender expense was not incurred or advanced (but this
shall not be construed to permit a waiver of financial covenants)
4. the approval of the annual budget for the operation of the Mortgaged
Property
5. any approval of a new, modified, terminated or amended lease for less than
or equal to 20% of the net rentable area of the property or 10,000 square
feet (whichever is less)
EXHIBIT C
CERTIFICATION
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:
(i) 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;
(ii) 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;
(iii) 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[__];
(iv) Based upon our knowledge and the annual compliance review
performed as required under Section 5.3(i) of the Sub-Servicing Agreement,
and except as disclosed in the compliance certificate delivered pursuant
to Section 5.3(i) of the Sub-Servicing Agreement, the Sub-Servicer has
fulfilled its obligations under the Sub-Servicing Agreement in all
material respects;
(v) 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 5.3(i) of the Sub-Servicing Servicing Agreement, the
Sub-Servicer has fulfilled its obligations under the Sub-Servicing
Servicing Agreement in all material respects;
(vi) 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
(vii) All annual assessment reports required under Section 5.3(j) 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 5.3(j) 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: _________________________
CWCAPITAL LLC
By:_________________________________
Name:
Title: