Exhibit 99.4
WACHOVIA BANK, NATIONAL ASSOCIATION,
Servicer
and
BANK OF AMERICA, N.A.
Sub-Servicer
SUB-SERVICING AGREEMENT
Dated as of March 1, 2006
GE Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates
Series 2006-C1
This is a Sub-Servicing Agreement (the "Agreement"), dated as of March 1,
2006, by and between BANK OF AMERICA, N.A., having an office at ▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, CA9-706-06-42, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and its
successors and assigns (the "Sub-Servicer"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, having an office at NC 1075, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and its successors and assigns (the "Servicer").
W I T N E S S E T H:
WHEREAS, GE COMMERCIAL MORTGAGE CORPORATION (the "Depositor"), LASALLE
BANK NATIONAL ASSOCIATION (the "Trustee"), LNR PARTNERS, INC. (the "Special
Servicer") and the Servicer have entered into that certain Pooling and Servicing
Agreement dated as of March 1, 2006, as amended, modified and restated from time
to time (the "Pooling and Servicing Agreement"), whereby the Servicer shall
service certain mortgage loans on behalf of the Trustee;
WHEREAS, Section 3.22 of the Pooling and Servicing Agreement permits the
Servicer to enter into agreements with Sub-Servicers for the sub-servicing of
the Mortgage Loans; and
WHEREAS, the Servicer desires to enter into a contract with the
Sub-Servicer whereby the Sub-Servicer shall service certain of such mortgage
loans listed on Exhibit A (the "Mortgage Loan Schedule") attached hereto (the
"Mortgage Loans") on behalf of the Servicer.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Servicer and the Sub-Servicer hereby agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01:
"Available Distribution Amount" shall mean, with respect to any date, an
amount equal to, without duplication, (a) the sum of (i) the aggregate of the
amounts on deposit in the Sub-Servicer Custodial Account (as defined herein) as
of such date (including any amounts required to be withdrawn from any Serviced
Whole Loan Custodial Account), (ii) if and to the extent not included in the
amount referred to in subclause (a)(i), the aggregate amount transferred from
the REO Account (if established) to the Sub-Servicer as of such date to the
extent not previously remitted to the Servicer, (iii) the aggregate of all other
amounts received with respect to the Mortgage Loans as of such date to the
extent not previously remitted to the Servicer and (iv) the aggregate amount of
Prepayment Interest Shortfalls deposited by the Sub-Servicer in the Sub-Servicer
Custodial Account as required by Section 3.19 of the Pooling and Servicing
Agreement as incorporated herein pursuant to Section 3.01(c)(28) of this
Agreement, to the extent not previously remitted to the Servicer, net of (b) the
portion of the amount described in subclause (a) of this definition that
represents one or more of the following: (i) Escrow Payments or (ii) any amounts
that the Sub-Servicer is entitled to retain as compensation pursuant to Section
3.11 of the Pooling and Servicing Agreement as incorporated herein pursuant to
Section 3.01(c)(19) of this Agreement.
"Collection Report" shall mean the monthly report prepared by the
Sub-Servicer setting forth, with respect to each Mortgage Loan and the most
recently ended Collection Period prior to the due date of such report, the
information described on Exhibit G attached hereto.
"Incorporated Sections" shall have the meaning set forth in Section
3.01(b) of this Agreement.
"Mortgage Loans" shall have the meaning specified in the recitals hereto.
"Mortgage Loan Schedule" shall have the meaning specified in the recitals
hereto.
"P&I Advance Date" shall mean the second Business Day after each
Determination Date.
"References Modification" shall have the meaning set forth in Section
3.01(b) of this Agreement.
"Sub-Servicing Fee" shall mean, with respect to each Mortgage Loan and REO
Loan, the fee payable to the Sub-Servicer pursuant to Section 3.01(c)(19) of
this Agreement.
"Sub-Servicing Fee Rate" shall mean, with respect to each Mortgage Loan,
the rate that corresponds to such Mortgage Loan set forth on Exhibit A hereto
under the heading "Sub-Servicing Fee."
ARTICLE II
SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents.
The Servicer, by execution and delivery of this Agreement, does hereby
contract with the Sub-Servicer, subject to the terms of this Agreement, for the
servicing of the Mortgage Loans. On and after the Closing Date, the Sub-Servicer
shall hold any portion of the Mortgage File (including without limitation, any
original letter of credit) in the possession of the Sub-Servicer in trust by the
Sub-Servicer, on behalf of the Servicer for the benefit of the Trustee. The
Sub-Servicer's possession of any portion of the Mortgage File shall be at the
will of the Servicer and the Trustee for the sole purpose of facilitating the
servicing or the supervision of servicing of the related Mortgage Loan pursuant
to this Agreement, and such retention and possession by the Sub-Servicer shall
be in a custodial capacity only. Any portion of the Mortgage File retained by
the Sub-Servicer shall be identified to reflect clearly the ownership of the
related Mortgage Loan by the Trustee. The Sub-Servicer shall release from its
custody any Mortgage File retained by it only in accordance with this Agreement
and the Pooling and Servicing Agreement. Within 20 days following the Closing
Date the Sub-Servicer shall provide to the Servicer a certification executed by
a duly authorized officer of the Sub-Servicer, certifying to the Servicer as to
the original letters of credit held by the Sub-Servicer and identifying the
letters of credit, the amounts of the letters of credit and the Mortgage Loans
to which they relate.
Section 2.02 Notice of Breach of Representations and Warranties.
The Sub-Servicer shall promptly notify the Servicer upon becoming aware of
any breach of any representations and warranties contained in the Mortgage Loan
Purchase Agreement.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
a) The Sub-Servicer, as an independent contractor, shall service and
administer the Mortgage Loans in a manner consistent with the Servicing Standard
under the Pooling and Servicing Agreement.
(b) The Sub-Servicer shall perform, on behalf of the 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
specifically incorporated herein pursuant to Section 3.01(c) of this Agreement
(the "Incorporated Sections"), as modified by Section 3.01(c) of this Agreement,
and the Servicer shall have the same rights with respect to the Sub-Servicer
that the Trustee, the Depositor, the Underwriters, the Rating Agencies, the
Fiscal Agent and the Certificateholders (including, without limitation, the
right of the Special Servicer to direct the Servicer during certain periods)
have with respect to the Servicer under the Pooling and Servicing Agreement to
the extent that the Sub-Servicer is acting on behalf of the Servicer hereunder
and except as otherwise set forth herein. Without limiting the foregoing, and
subject to Section 3.21 of the Pooling and Servicing Agreement as modified
herein, the Sub-Servicer shall service and administer all of the Mortgage Loans
that are not Specially Serviced Mortgage Loans; provided, however, that the
Sub-Servicer shall continue to receive payments (and provide notice to the
Servicer of such payments) and prepare all reports to the Trustee required from
the Servicer under the Pooling and Servicing Agreement with respect to any
Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans)
to the extent such provisions of the Pooling and Servicing Agreement are
incorporated herein pursuant to Section 3.01(c) of this Agreement, and further
to render such incidental services with respect to any Specially Serviced
Mortgage Loans and REO Properties as are specifically provided for under Section
3.01(c) of this Agreement. All references herein to the respective duties of the
Sub-Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21 of the Pooling and
Servicing Agreement, as modified herein and to the Special Servicer's right to
service Specially Serviced Mortgage Loans. Except as otherwise set forth below,
for purposes of this Agreement, (i) references to the Trustee, the Depositor,
the Underwriters, the Rating Agencies, the Fiscal Agent and the
Certificateholders in the Incorporated Sections (and in the defined terms used
therein) shall be deemed to be references to the Servicer hereunder, (ii)
references to the Servicer in the Incorporated Sections (and in the defined
terms used therein) shall be deemed to be references to the Sub-Servicer
hereunder, and (iii) references to the Mortgage Loans (as defined in the Pooling
and Servicing Agreement) in the Incorporated Sections and in the defined terms
referenced in the Incorporated Sections shall be deemed to be references to the
Mortgage Loans (such modification of the Incorporated Sections pursuant to
clauses (i), (ii) and (iii) of this sentence shall be referred to herein as the
"References Modification"). In each case where the Servicer is given any power
to act under the provisions of the Incorporated Sections, such power is hereby
delegated to the Sub-Servicer to the extent necessary to perform its obligations
under this Agreement.
(c) The following Sections of the Pooling and Servicing Agreement, unless
otherwise provided in this Section 3.01(c) of this Agreement, are hereby
incorporated herein by reference as if fully set forth herein, and, for purposes
of this Agreement, in addition to the References Modification, are hereby
further modified as set forth below:
(1) Section 3.01. Without limiting the generality of the obligations
of the Sub-Servicer hereunder, the Sub-Servicer shall monitor and certify
on a quarterly basis starting for the quarter ending in June of 2006,
within 30 days of the end of such quarter the information on each Mortgage
Loan as required by, and in the form of, Exhibit E attached hereto,
pursuant to Section 3.01(c)(34) of this Agreement. In addition, without
limiting the generality of the foregoing, the Sub-Servicer shall take all
necessary action to continue all UCC Financing Statements in favor of the
originator of each Mortgage Loan or in favor of any assignee prior to the
expiration of such UCC Financing Statements.
(2) Section 3.02(a), (b), (c), (d), (e) and (g) is incorporated
herein. In Section 3.02(g), references to the Servicer shall be references
to the Sub-Servicer, and references to the Special Servicer shall be
references to the Servicer. Furthermore, the proviso of the last sentence
of Section 3.02(g) of the Pooling and Servicing Agreement is not
incorporated herein. The determination as to the application of amounts
collected in respect of any Mortgage Loan, to the extent the application
is not governed by the express provisions of the related Mortgage Note or
Mortgage, shall be made by the Servicer. The Sub-Servicer may waive all
charges that the Servicer is permitted to waive under Section 3.02(a) of
the Pooling and Servicing Agreement without the consent of the Servicer.
(3) Section 3.03(a). The creation of any Servicing Account shall be
evidenced by a certification in the form of Exhibit F attached hereto and
a copy of such certification shall be furnished to the Servicer on or
prior to the Closing Date and thereafter to the Servicer upon any transfer
of the Servicing Account.
(4) Section 3.03(b). Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and certify to the information on each Mortgage Loan with respect to
taxes, insurance premiums, assessments, ground rents and other similar
items on a quarterly basis starting for the quarter ending in June of
2006, within 30 days of the end of such quarter as required by, and in the
form of, Exhibit E attached hereto, pursuant to Section 3.01(c)(34) of
this Agreement. The Sub-Servicer shall not be obligated to make any
Servicing Advances, except as described in the following sentence. The
Sub-Servicer shall give the Servicer not less than five Business Days'
notice before the date on which the Servicer is required to make any
Servicing Advance with respect to any Mortgage Loan; provided, however,
that, with respect to any Servicing Advance required to be made on an
urgent or emergency basis such that the Sub-Servicer is unable to provide
the Servicer with sufficient notice to enable the Servicer to make such
Servicing Advance, the Sub-Servicer shall make such Servicing Advance and
the Servicer shall reimburse the Sub-Servicer for such Servicing Advance
within five Business Days of receipt of written request therefor and
interest thereon at the Reimbursement Rate. In addition, the Sub-Servicer
shall provide the Servicer with such information in its possession as the
Servicer may reasonably request to enable the Servicer to determine
whether a requested Servicing Advance would constitute a Nonrecoverable
Servicing Advance.
(5) Section 3.03(g). References to the Servicer shall be references
to the Sub-Servicer. References to the Special Servicer shall be
references to the Servicer.
(6) Section 3.04(a). The Sub-Servicer shall establish a custodial
account (hereinafter the "Sub-Servicer Custodial Account"), meeting all of
the requirements of the Certificate Account, and references to the
Certificate Account shall be references to such Sub-Servicer Custodial
Account. The creation of any Sub-Servicer Custodial Account shall be
evidenced by a certification in the form of Exhibit F attached hereto and
a copy of such certification shall be furnished to the Servicer on or
prior to the Closing Date and thereafter to the Servicer upon any transfer
of the Sub-Servicer Custodial Account. For purposes of the second to last
paragraph of Section 3.04(a) of the Pooling and Servicing Agreement, the
Servicer shall direct the Special Servicer to make payment of amounts
referenced therein directly to the Sub-Servicer for deposit in the
Sub-Servicer Custodial Account.
(7) Section 3.04(b). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account and references to the
Lower Tier Distribution Account shall be references to the Certificate
Account. The parenthetical after the term "Available Distribution Amount"
in the fourth sentence of Section 3.04(b) is not incorporated herein. Each
remittance required to be made to the Servicer on the P&I Advance Date
shall be made by wire transfer and shall be made by 2:00 p.m. New York
City time on such date. Each month, by 2:00 p.m. New York City time on the
first Business Day after receipt of any Available Distribution Amount
between the P&I Advance Date and the Distribution Date, the Sub-Servicer
shall forward to the Servicer by wire transfer the Available Distribution
Amount for such date. Each month by 2:00 p.m. New York City time, on the
first Business Day after receipt of any amounts which constitute
delinquent payments on the Mortgage Loans and any related late fees or
Penalty Interest (excluding any amounts to which the Sub-Servicer is
entitled to as compensation pursuant to Section 3.11 of the Pooling and
Servicing Agreement as incorporated herein pursuant to Section 3.01(c)(19)
of this Agreement) that the Sub-Servicer is not required to remit to the
Servicer pursuant to the previous sentence, the Sub-Servicer shall forward
to the Servicer by wire transfer all such amounts collected by the
Sub-Servicer and not previously remitted to the Servicer. Section
3.01(c)(34) of this Agreement sets forth certain reporting requirements
with respect to such remittances. The fourth paragraph of Section 3.04(b)
of the Pooling and Servicing Agreement is not incorporated herein. If any
check or other form of payment received by the Sub-Servicer with respect
to a Mortgage Loan is returned for insufficient funds and the Sub-Servicer
has previously remitted cash in the amount of such payment to the
Servicer, the Servicer shall reimburse the Sub-Servicer for such amount
within five Business Days after the Servicer receives notification from
the Sub-Servicer of such insufficient funds.
(8) Reserved.
(9) Section 3.05 is not incorporated herein. The Sub-Servicer may,
from time to time, make withdrawals from the Sub-Servicer Custodial
Account for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to remit to the Servicer for deposit in the Certificate
Account the amounts required to be so deposited pursuant to Section
3.01(c)(7) of this Agreement;
(ii) to pay to itself earned and unpaid Sub-Servicing Fees in
respect of each Mortgage Loan and REO Loan, the Sub-Servicer's right
to payment pursuant to this clause or Condemnation Proceeds (ii)
with respect to any Mortgage Loan or REO Loan being limited to
amounts received on or in respect of such Mortgage Loan (whether in
the form of payments, Liquidation Proceeds or Insurance Proceeds or
Condemnation Proceeds) or such REO Loan (whether in the form of REO
Revenues, Liquidation Proceeds or Insurance Proceeds or Condemnation
Proceeds) that are allocable as a recovery of interest thereon;
(iii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a) of the Pooling and Servicing
Agreement, interest and investment income earned in respect of
amounts held in the Sub-Servicer Custodial Account as provided in
Section 3.01(c)(11) of this Agreement, but only to the extent of the
Net Investment Earnings with respect to the Sub-Servicer Custodial
Account for any Collection Period;
(iv) to clear and terminate the Sub-Servicer Custodial Account
at the termination of this Agreement pursuant to Section 9.01 of the
Pooling and Servicing Agreement, as modified herein; and
(v) any amounts deposited in the Sub-Servicer Custodial
Account in error.
The Sub-Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when
appropriate, in connection with any withdrawal from the Sub-Servicer
Custodial Account pursuant to clauses (ii) and (iii) above.
(10) Reserved.
(11) Section 3.06 is not incorporated herein. The Sub-Servicer may
invest funds in the Sub-Servicer Custodial Account, and any Servicing
Account on the same terms as the Servicer may invest funds in the
Certificate Account and any Servicing Account, and subject to the same
rights, restrictions and obligations regarding maturity dates, gains,
losses, withdrawals, possession of Permitted Investments and Permitted
Investments payable on demand. Without limiting the generality of the
foregoing, (A) any investment of funds in the Sub-Servicer Custodial
Account or a Servicing Account shall be made in the name of the Trustee
(in its capacity as such) and (B) the Sub-Servicer, on behalf of the
Trustee for the benefit of the Certificateholders, shall maintain
continuous physical possession of any Permitted Investment that is either
(i) a "certificated security", as such term is defined in the UCC (such
that the Trustee shall have control pursuant to 8-106 of the UCC) or (ii)
other property in which a secured party may perfect its security interest
by physical possession under the UCC or any other applicable law, and (C)
in the case of any Permitted Investment held in the form of a "security
entitlement" (within the meaning of Section 8-102(a)(17) of the UCC), the
Sub-Servicer shall take or cause to be taken such action as the Servicer
or Trustee deems reasonably necessary to cause the Trustee to have control
over such security entitlement.
(12) Section 3.07(a). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account. All insurance policies
caused to be maintained by the Sub-Servicer hereunder shall also name the
Servicer as additional insured and loss payee; Servicer shall designate in
writing to the Sub-Servicer how its name shall appear. Within thirty (30)
days after the execution date of this agreement, the Sub-Servicer shall
forward to the Servicer a fully completed certificate of insurance in the
form of Exhibit H attached hereto. Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and certify to the status of insurance policies relating to the Mortgage
Loans on a quarterly basis starting for the quarter ending in June of
2006, within 30 days of the end of such quarter as required by, and in the
form of, Exhibit E attached hereto, pursuant to Section 3.01(c)(34) of
this Agreement.
(13) Section 3.07(b). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account.
(14) Section 3.07(c). The fidelity bond and insurance policies
required hereunder shall also name the Servicer as additional insured and
loss payee; Servicer shall designate in writing to Sub-Servicer how its
name shall appear.
(15) Section 3.07(f).
(16) Section 3.08. References to the Servicer shall not be deemed to
be references to the Sub-Servicer for purposes of Section 3.08(a) and (b).
The Sub-Servicer will not approve or consent to an assumption of a
Mortgage Loan or a transfer of interest in the Mortgagor or waive any
restrictions contained in the related Mortgage on transfer of an interest
in the related Mortgaged Property or Mortgagor or on subordinate
financing, without the prior written consent of the Servicer. The
Sub-Servicer shall forward all assumptions or transfer of interest
requests to the Servicer (which will forward such requests to the Special
Servicer), along with any information reasonably requested by the Servicer
for the analysis of such requests. The Sub-Servicer shall cooperate with
and assist the Servicer in obtaining information necessary for the
analysis of such requests. The Sub-Servicer shall be entitled to 100% of
any assumption fees and application fees in connection with an assumption
or transfer of interest request, in each case collected with respect to
the Mortgage Loans to the extent that the Servicer is entitled to such
fees under the Pooling and Servicing Agreement. In connection with each
request for an assumption of a Mortgage Loan or a transfer of interest in
the Mortgagor, the Sub-Servicer shall pay the Servicer (a) $1,500 if the
related Mortgage Loan has a then current principal balance of less than
$5,000,000 and (b) $3,000 if the related Mortgage Loan has a then current
principal balance of equal to or greater than $5,000,000. The Sub-Servicer
shall forward all subordinate financing requests to the Servicer (which
will forward such requests to the Special Servicer), along with any
information reasonably requested by the Servicer for the analysis of such
requests.
(17) Section 3.09. References to the Servicer shall not be deemed to
be references to the Sub-Servicer for purposes of Section 3.09 of the
Pooling and Servicing Agreement.
(18) Section 3.10. The references to the Certificate Account in
Section 3.10(a) and in Section 3.10(b) shall be references to the
Sub-Servicer Custodial Account. No expense incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to
the Sub-Servicer Custodial Account.
(19) Section 3.11(a) and (c). References to the Servicing Fee shall
be references to the Sub-Servicing Fee and references to the Servicing Fee
Rate shall be references to the Sub-Servicing Fee Rate. All references to
the Certificate Account and the Interest Reserve Account shall be
references to the Sub-Servicer Custodial Account. Any late payment or
other fees including Penalty Charges paid in respect of a delinquent loan
to which the Servicer is entitled under the Pooling and Servicing
Agreement (other than as payment of interest on Advances or additional
Trust Fund expenses) shall be paid to the Sub-Servicer. The Sub-Servicer
shall be entitled to Prepayment Interest Excesses to the extent not needed
by the Servicer to offset Prepayment Interest Shortfalls under Section
3.19(a) of the Pooling and Servicing Agreement (such Prepayment Interest
Excesses to be applied pro rata along with any other Prepayment Interest
Excesses in the same Collection Period to cover Prepayment Interest
Shortfalls). The Sub-Servicer shall remit any Prepayment Interest Excesses
to the Servicer as part of the Available Distribution Amount. On the P&I
Advance Date (as defined in the Pooling and Servicing Agreement) the
Servicer shall promptly remit any Prepayment Interest Excesses that the
Sub-Servicer is entitled to under the previous sentence to the
Sub-Servicer. The Sub-Servicer shall be entitled to 100% of any
modification, consent, waiver, earnout, or assumption fees, application
fees or other fees or charges in connection with an assumption,
modification or similar request, in each case collected with respect to
the Mortgage Loans to the extent that the Servicer is entitled to such
fees or charges under the Pooling and Servicing Agreement.
(20) Reserved.
(21) Section 3.11(b). References to the Servicer shall not be deemed
to be references to the Sub-Servicer for purposes of Section 3.11(b). Any
such fees referred to in Section 3.11(b) recovered by the Sub-Servicer
shall be paid by the Sub-Servicer to the Servicer for distribution in
accordance with the Pooling and Servicing Agreement.
(22) Reserved.
(23) Section 3.12(a) and (b). The Sub-Servicer shall promptly (but
in no event later than 30 days after the related inspection or collection,
as applicable) forward to the Servicer a copy of all inspection reports
prepared by the Sub-Servicer and all operating statements and rent rolls
collected by the Sub-Servicer. The Sub-Servicer shall promptly forward
each CMSA NOI Adjustment Worksheet and CMSA Operating Statement Analysis
Report to the Servicer after each update. Notwithstanding the foregoing,
the Sub-Servicer shall not (a) perform inspections (b) prepare inspection
reports and/or (c) collect financial statements and/or rent rolls with
respect to the Mortgage Loans identified on the Mortgage Loan Schedule
attached as Exhibit A hereto as the Weston Ranch - Sterling and the Shops
at Weston Ranch - Sterling.
(24) Section 3.12(d) is not incorporated herein. The Sub-Servicer
shall deliver to the Servicer, no later than 1:00 p.m. New York City time
on the first Business Day following the Determination Date, by electronic
transmission in the format designated by the Servicer, a CMSA Loan
Periodic Update File, a CMSA Loan Level Reserve - LOC Report, a CMSA
Delinquent Loan Status Report, the CMSA Property File, the CMSA Financial
File, the CMSA Comparative Financial Status Report and a CMSA Servicer
Watch List Report, each providing the required information as of such
Determination Date; provided, however, that the Sub-Servicer shall not be
required to prepare or deliver any of the files or reports comprising the
CMSA Investor Reporting Package (other than the CMSA Loan Periodic Update
File) before the first Business Day after the third Determination Date
following the Closing Date. The Sub-Servicer shall deliver to the
Servicer, no later than 1:00 p.m. New York City time on the first Business
Day of each calendar month, by electronic transmission in the format
designated by the Servicer, an interim CMSA Delinquent Loan Status Report
providing the required information as of the last Business Day of the
preceding calendar month.
(25) Reserved.
(26) Reserved.
(27) Section 3.15. The proviso and last two sentences of Section
3.15 are not incorporated herein.
(28) Section 3.19(a) and (b). The Sub-Servicer shall deposit all
Compensating Interest Payments in the Sub-Servicer Custodial Account on
each P&I Advance Date. References to Servicing Fees in Section 3.19(a)
shall be references to the Servicing Fee as defined in the Pooling and
Servicing Agreement. The Sub-Servicer shall forward to the Servicer any
notices of default under the related Ground Lease received from a ground
lessor upon receipt thereof.
(29) Section 3.20(a), (f), (g), (i) and (m). The Sub-Servicer will
not approve or consent to any modification, extension, waiver or
amendment, with respect to any Mortgage Loan. To the extent the Servicer
has the obligation and authority under the Pooling and Servicing
Agreement, the Sub-Servicer may approve any lease or extension or renewal
thereof (if applicable), with respect to any Mortgage Loan with a Stated
Principal Balance that is less than the lesser of (1) an amount greater
than 5% of the then aggregate outstanding principal balances of the
Mortgage Loans or (2) $35,000,000, subject to any restrictions and
requirements under the Pooling and Servicing Agreement (including, without
limitation, Section 12.10 of the Pooling and Servicing Agreement). The
Sub-Servicer shall forward all requests for such matters (except for those
that the Sub-Servicer is permitted to process as contemplated above) to
the Servicer along with all information contained in the Mortgage File
reasonably requested by the Servicer for the analysis of such requests.
Notwithstanding the foregoing the Sub-Servicer shall not be required to
forward any documentation or obtain the consent of the Servicer in
connection with any of the actions covered under clause (i) through (v) of
the second paragraph of Section 3.20(a) of the Pooling and Servicing
Agreement. Except as provided in Section 3.01(c)(19), all modification
fees and other fees or charges in connection with such matters shall be
charged by and paid to the Servicer. The Sub-Servicer will not accept any
Principal Prepayment with respect to any Mortgage Loan or permit any
defeasance without the written consent of the Servicer. The Sub-Servicer
shall promptly forward all requests for Principal Prepayments or
defeasance to the Servicer, along with a payoff statement (with respect to
each Principal Prepayment request) setting forth the amount of the
necessary Principal Prepayment calculated by the Sub-Servicer. The
Sub-Servicer shall have no obligation to calculate any defeasance amount.
(30) Section 3.21(a) and (c). The Sub-Servicer shall immediately
notify the Servicer of any event or circumstance that the Sub-Servicer
deems to constitute a Servicing Transfer Event with respect to any
Mortgage Loan. The determination as to whether a Servicing Transfer Event
has occurred shall be made by the Servicer. Upon receipt by the Servicer
of notice from the Special Servicer that a Specially Serviced Mortgage
Loan has become a Corrected Mortgage Loan, the Servicer shall promptly
give the Sub-Servicer notice thereof and the obligation of the
Sub-Servicer to service and administer such Mortgage Loan shall resume.
(31) Sections 3.21(b) and (d) are not incorporated herein. The
Sub-Servicer shall give immediate notice to the Servicer of any Servicing
Transfer Event and shall maintain ongoing payment records with respect to
each Mortgage Loan that becomes a Specially Serviced Mortgage Loan or an
REO Property and shall timely provide the Servicer and the Special
Servicer with any information required by either to perform their
respective duties under the Pooling and Servicing Agreement.
(32) Section 3.22. References to the Servicer shall not be deemed to
be references to the Sub-Servicer for purposes of Section 3.22 of the
Pooling and Servicing Agreement. Each and every one of the terms and
conditions of Section 3.22 of the Pooling and Servicing Agreement shall be
enforceable against the Sub-Servicer in accordance with the terms thereof.
The Sub-Servicer may not enter into any new Sub-Servicing Agreements in
connection with the Mortgage Loans and shall directly service the Mortgage
Loans in accordance with the terms and conditions of this Agreement.
(33) Section 3.23(a) and (c). The Sub-Servicer is authorized to
transact business in the state or states in which the related Mortgaged
Properties it is to service are situated, if and to the extent required by
applicable law to ensure the enforceability of any related Loan. The
Sub-Servicer is an approved conventional seller/servicer of mortgage loans
for ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or a Department of Housing and Urban
Development ("HUD") approved servicer. Each insurance policy and fidelity
bond referenced in Section 3.07(c) of the Pooling and Servicing Agreement
names the Servicer as an additional insured and loss payee. The net worth
of the Sub-Servicer determined in accordance with generally accepted
accounting principles is not less than $15 million or the minimum net
worth requirement of ▇▇▇▇▇▇▇ Mac, as it may be modified from time to time,
whichever is greater. The Sub-Servicer is not a Prohibited Party.
(34) Section 4.02(b) is not incorporated herein. The Sub-Servicer
shall deliver to the Servicer by electronic transmission in a format
designated by the Servicer (a) not later than 1:00 p.m. New York City time
on the first Business Day following the Determination Date, the Collection
Report (the information therein to be stated as of the Determination Date)
and (b) not later than 1:00 p.m., New York City time on the first Business
Day following the Determination Date in March, June, September and
December of each year, the information on the Mortgage Loans, including
without limitation information regarding UCC Financing Statements, taxes,
insurance premiums and ground rents, on a quarterly basis starting for the
quarter ending in June of 2006, within 30 days of the end of such quarter
required by and in the form of Exhibit E attached hereto. The Sub-Servicer
shall deliver to the Servicer on the second Business Day of each month by
electronic transmission in a format designated by the Servicer, a
remittance report containing scheduled balance information for each
Mortgage Loan reflecting the scheduled Periodic Payment for such month in
the form of Exhibit G attached hereto. In addition, on each day that the
Sub-Servicer forwards to the Servicer any funds pursuant to Section
3.01(c)(7) of this Agreement, the Sub-Servicer shall deliver to the
Servicer by electronic transmission in a format designated by the Servicer
a report of the nature of such remittance in the form of Exhibit G
attached hereto. The Sub-Servicer shall also prepare and deliver to the
Servicer and Special Servicer not later than 4:00 p.m. New York City Time
on the first Business Day following the Determination Date, a
certification in the form of Exhibit J attached hereto.
(35) Section 4.03 is not incorporated herein. The Sub-Servicer shall
have no obligation to make P&I Advances.
(36) Sections 11.01, 11.03, 11.05, 11.07, 11.08, 11.09, 11.10, 11.11,
11.12 and 11.13. The Sub-Servicer shall perform all obligations and be subject
to all restrictions and requirements applicable to the Servicer, a
"Sub-Servicer," "Additional Servicer," "Certifying Servicer," "Servicing
Function Participant" or "Reporting Servicer" in such Sections (including,
without limitation, those deliveries or duties that the Pooling and Servicing
Agreement requires the Servicer to use commercially reasonable efforts to cause
a "Sub-Servicer," "Additional Servicer," "Certifying Servicer," "Servicing
Function Participant" or "Reporting Servicer" to make or perform). Items
required by Sections 11.08, 11.11, 11.12 and 11.13 shall be delivered by the
Sub-Servicer (without regard to whether the Sub-Servicer is a Servicing Function
Participant) by March 1st (subject to a grace period through two Business Days
before March 15th) of each year, beginning in 2007, except that as set forth in
the Pooling and Servicing Agreement with respect to years in which the Trust is
not subject to Exchange Act reporting requirements. In such years, such items
(other than the item required by Section 11.08) shall be delivered two Business
Days before the Servicer is required to deliver comparable items under the
Pooling and Servicing Agreement. If the Sub-Servicer is a Servicing Function
Participant, the items required by Sections 11.08, 11.11, 11.12 and 11.13 shall
be delivered to the Servicer and the Persons specified in such Sections, and if
the Sub-Servicer is not a Servicing Function Participant, the items required by
Sections 11.08, 11.11, 11.12 and 11.13 shall be delivered only to the Servicer.
The Sub-Servicer shall provide all reasonable cooperation and assistance (with
respect to information regarding the Sub-Servicer or the Mortgage Loans) to
enable the Servicer to comply with its obligations under Article XI of the
Pooling and Servicing Agreement, including, without limitation, providing to the
Servicer in a timely manner, Additional Form 10-K Disclosure with respect to
itself under Item 1117 of Regulation AB and with respect to affiliations with
the Trustee or Special Servicer under Item 1119(a) of Regulation AB, and any
Reportable Event with respect to Item 6.02 of Form 8-K as to the Sub-Servicer.
The Sub-Servicer shall indemnify and hold harmless each Certification
Party (and any comparable party in an Other Securitization) and the Servicer
from and against any losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments and other costs and expenses incurred
by such Certification Party (and any comparable party in an Other
Securitization) or the Servicer arising out of (i) a breach of its obligations
to provide any of the annual compliance statements or annual assessment of
servicing criteria or attestation reports pursuant to this Agreement or (ii)
negligence, bad faith or willful misconduct on its part in the performance of
such obligations hereunder.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless any Certification Party (and any comparable party in an Other
Securitization) or the Servicer, then the Sub-Servicer shall contribute to the
amount paid or payable to the Certification Party (and any comparable party in
an Other Securitization) or the Servicer as a result of the losses, claims,
damages or liabilities of the Certification Party (and any comparable party in
an Other Securitization) or the Servicer in such proportion as is appropriate to
reflect the relative fault of the Certification Party (and any comparable party
in an Other Securitization) or the Servicer on the one hand and the Sub-Servicer
on the other in connection with a breach of the Sub-Servicer's obligations
pursuant to this section (or breach of its representations or obligations under
this Agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports or otherwise comply
with the requirements of Article XI of the Pooling and Servicing Agreement) or
the Sub-Servicer's negligence, bad faith or willful misconduct in connection
therewith.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a national banking association under the laws of the United
States.
Any Person into which the Sub-Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Sub-Servicer shall be a party, or any Person succeeding to all or
substantially all of the business of the Sub-Servicer, shall be the successor of
the Sub-Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person (i) must be a business entity whose business includes the origination and
servicing of mortgage loans and shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, (ii) must be an approved servicer of multifamily mortgage loans for
▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or a HUD approved servicer, (iii) must be acceptable
to the Servicer, and (iv) shall have assumed in writing the obligations of the
Sub-Servicer under this Agreement.
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or agents of
the Sub-Servicer shall be under any liability to the Servicer for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Sub-Servicer or any such person against
liability for any breach of representation, warranty or covenant made herein, or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of its duties or by reason of
negligent disregard of obligations and duties hereunder. The Sub-Servicer and
any officer, employee or agent of the Sub-Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Sub-Servicer shall not be under
any obligation to appear in, prosecute or defend any legal or administrative
action (whether in equity or at law), proceeding, hearing or examination that is
not incidental to its respective duties under this Agreement or which, in its
opinion may involve it in any ultimate expenses or liability; provided, however,
the Sub-Servicer may involve it in any ultimate expenses or liability; provided,
however, the Sub-Servicer may, with the consent of the Servicer, undertake any
such action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action, proceeding,
hearing or examination and any liability resulting therefrom, to the extent the
same are expenses, costs and liabilities of the Trust Fund pursuant to the
Pooling and Servicing Agreement, shall be expenses, costs and liabilities of the
Servicer and the Sub-Servicer shall be entitled to be reimbursed therefor from
the Servicer upon written demand.
Section 3.04 Sub-Servicer Not to Resign.
The Sub-Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Sub-Servicer and the Servicer, or
upon the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Sub-Servicer. Any such
determination permitting the resignation of the Sub-Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Servicer, which Opinion
of Counsel shall be in form and substance acceptable to the Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Sub-Servicer to service the
Mortgage Loans hereunder, the Sub-Servicer acknowledges that the Servicer has
acted in reliance upon the Sub-Servicer's independent status, the adequacy of
its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing and the continuance thereof.
Without in any way limiting the generality of this Section 3.05, the
Sub-Servicer shall not either assign or transfer this Agreement or the servicing
hereunder nor delegate its rights or duties hereunder or any portion thereof, or
sell or otherwise dispose of all or substantially all of its property or assets,
without the prior written approval of the Servicer, which consent will not be
unreasonably withheld or delayed. Notwithstanding the foregoing, prior to any
assignment or transfer by the Sub-Servicer of this Agreement or the servicing
hereunder (the "Sub-Servicing Rights"), the Sub-Servicer shall allow the
Servicer an opportunity to bid on the purchase of such Sub-Servicing Rights. The
Sub-Servicer may also solicit bids from any other parties independent of the
Sub-Servicer. If after receipt by the Sub-Servicer of all bids, the Servicer is
not the highest bidder, the Servicer will be given the opportunity to submit a
second bid and final bid, which bid shall be given equal consideration with all
other bids.
Section 3.06 Indemnification.
The Servicer and the Sub-Servicer each agrees to and hereby does indemnify
and hold harmless the Servicer, in the case of the Sub-Servicer, and the
Sub-Servicer, in the case of the Servicer (including any of their partners,
directors, officers, employees or agents) from and against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that the Servicer, in the case of the Sub-Servicer, and the Sub-Servicer, in the
case of the Servicer, may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Servicer or Sub-Servicer, as
applicable, in the performance of its obligations and duties under this
Agreement or by reason of negligent disregard by the Servicer or Sub-Servicer,
as applicable, of its duties and obligations hereunder or by reason of breach of
any representations or warranties made herein; provided, that such indemnity
shall not cover indirect or consequential damages. Each indemnified party
hereunder shall give prompt written notice to the indemnitor of matters which
may give rise to liability of such indemnitor hereunder; provided, however, that
failure to give such notice shall not relieve the indemnitor of any liability
except to the extent of actual prejudice. This Section 3.06 shall survive the
termination of this Agreement and the termination or resignation of the Servicer
or the Sub-Servicer. The Sub-Servicer shall have no direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
Sub-Servicer shall not without the Trustee's written consent: (i) initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Sub-Servicer's representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Trustee to be registered to
do business in any state. The Sub-Servicer shall indemnify the Trustee for any
and all reasonable out-of-pocket costs, liabilities and expenses incurred by the
Trustee in connection with the negligent or willful misuse of such
powers-of-attorney by the Sub-Servicer.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
In case one or more of the following events (each, an "Event of Default")
by the Sub-Servicer shall occur and be continuing, that is to say:
(a) any failure by the Sub-Servicer to deposit into the Sub-Servicer
Custodial Account, any Servicing Account or any REO Account, or to deposit into,
or to remit to the Servicer for deposit into, the Certificate Account, on the
dates and at the times required by this Agreement, any amount required to be so
deposited or remitted under this Agreement; or
(b) any failure on the part of the Sub-Servicer to observe or perform its
obligations and duties in strict accordance with Sections 3.01(c)(12), (13) and
(14) of this Agreement; or
(c) any failure on the part of the Sub-Servicer to (a) timely make
available and certify to the Servicer the information called for on Exhibit E
attached hereto as required by Section 3.01(c)(34) of this Agreement, to the
extent the obtaining of such information which is a part of such report is
within the Sub-Servicer's control, or (b) timely provide to the Servicer the
Collection Report which failure continues unremedied for one (1) Business Day;
or
(d) the Sub-Servicer shall fail three (3) times within any two (2) year
period to timely provide to the Servicer any report required by this Agreement
to be provided to the Servicer, to the extent the obtaining of such information
which is a part of such report is within the Sub-Servicer's control; or
(e) any failure on the part of the Sub-Servicer duly to observe or perform
in any material respect any other of the covenants or agreements on the part of
the Sub-Servicer contained in this Agreement which continues unremedied for a
period of twenty (20) days (ten (10) days in the case of payment of insurance
premiums) after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Sub-Servicer by the Servicer;
or
(f) the Sub-Servicer shall fail to deliver to the Servicer any Performance
Certification as required by Section 11.08 of the Pooling and Servicing
Agreement as incorporated by Section 3.01(c)(36) of this Agreement, which
failure in any case continues unremedied three (3) Business Days immediately
preceding the day the Servicer is required to deliver any certification under
Section 11.08 of the Pooling and Servicing Agreement; or
(g) any breach on the part of the Sub-Servicer of any representation or
warranty contained in Section 3.23 of the Pooling and Servicing Agreement which
materially and adversely affects the interests of the Servicer or any Class of
Certificateholders or any affected holder of any Serviced Pari Passu Loan or
Serviced B Note and which continues unremedied for a period of thirty (30) days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Sub-Servicer by the Servicer; or
(h) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Sub-Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(i) the Sub-Servicer shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Sub-Servicer or of or relating to all or
substantially all of its property; or
(j) the Sub-Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(k) the Sub-Servicer shall cease to be an approved servicer of multifamily
mortgage loans for at least one of ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or HUD; or
(l) the Sub-Servicer shall assign or transfer or attempt to assign or
transfer all or part of its rights and obligations hereunder except as permitted
by this Agreement; or
(m) the net worth of the Sub-Servicer, determined in accordance with
generally accepted accounting principles shall decline to less than $15 million
or the minimum net worth requirement of ▇▇▇▇▇▇▇ Mac, as it may be modified from
time to time, whichever is greater; or
(n) the Trustee has received written notice from Fitch that the
continuation of the Sub-Servicer in that capacity would result, or has resulted,
in a downgrade or withdrawal of any rating then assigned by Fitch or any class
of Certificates or any class of Serviced Pari Passu Loan Securities; or
(o) the Sub-Servicer is no longer rated CPS3 or higher by Fitch or its
equivalent; or
(p) ▇▇▇▇▇'▇ places the rating of any Class of Certificates or any class of
Serviced Pari Passu Loan Securities on "watchlist" status for possible ratings
downgrade or withdrawal (or ▇▇▇▇▇'▇ has downgraded or withdrawn its rating for
any Class of Certificates or any class of Serviced Pari Passu Loan Securities)
citing servicing concerns with respect to the Sub-Servicer as the sole cause or
a material factor in such rating action; or
(q) the Sub-Servicer is removed from S&P's approved master servicer list
and either (a) is not reinstated within 60 days of removal or (b) any of the
ratings assigned to the Certificates or the Serviced Pari Passu Loan Securities
are qualified, downgraded, or withdrawn in connection with such removal,
whichever is earlier; or
(r) during the time the Trust is subject to reporting requirements of the
Exchange Act, the failure of the Sub-Servicer to comply with any of the
requirements under Article XI of the Pooling and Servicing Agreement, including
the failure to deliver any reports or certificates at the time such report or
certification is required under Article XI of the Pooling and Servicing
Agreement; or
(s) during the time the Trust is subject to reporting requirements of the
Exchange Act, the failure of the Sub-Servicer 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 transaction similar to the
Subject Securitization Transaction; or
(t) the Sub-Servicer is a Prohibited Party.
If any Event of Default shall occur and be continuing, then, and in each
and every such case, so long as such Event of Default shall not have been
remedied, the Servicer or the Depositor may terminate, by notice in writing to
the Sub-Servicer, all of the rights and obligations of the Sub-Servicer as
Sub-Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof. From and after the receipt by the Sub-Servicer of such written
notice, all authority and power of the Sub-Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Servicer pursuant to and under this Section, and, without
limitation, the Servicer is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Sub-Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Sub-Servicer agrees that if it is terminated pursuant to this
Section, it shall promptly (and in any event no later than five (5) Business
Days subsequent to its receipt of the notice of termination) provide the
Servicer with all documents and records (including, without limitation, those in
electronic form) requested by it to enable it to assume the Sub-Servicer's
functions hereunder, and shall cooperate with the Servicer in effecting the
termination of the Sub-Servicer's responsibilities and rights hereunder and the
assumption by a successor of the Sub-Servicer's obligations hereunder,
including, without limitation, the transfer within one Business Day to the
Servicer for administration by it of all cash amounts which shall at the time be
or should have been credited by the Sub-Servicer to the Sub-Servicer Custodial
Account, the Certificate Account, any Servicing Account, any REO Account and any
Reserve Account, or thereafter be received with respect to the Mortgage Loans or
any REO Property (provided, however, that the Sub-Servicer shall continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the date of such termination, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
3.03 of this Agreement notwithstanding any such termination).
In addition to any other rights the Servicer may have hereunder, if the
Sub-Servicer fails to remit to the Servicer any amounts when required to be
remitted hereunder, the Sub-Servicer shall pay to the Servicer interest on the
amount of such late remittance at the rate of Wachovia Bank, National
Association cost of funds per annum, applied on a per diem basis for each day
such remittance is late (i.e., said per annum rate divided by 365 multiplied by
the number of days late); but in no event shall such interest be greater than
the maximum amount permitted by law.
In addition to any other rights and remedies available to the Servicer
hereunder or at law or equity, including, without limitation, the right to a
recovery of damages, the Servicer may impose, and if so imposed, the
Sub-Servicer shall pay, the penalties described in this paragraph for any
failure by the Sub-Servicer to deposit into any account required hereby, or to
deposit into or to remit to the Servicer for deposit into the Certificate
Account, on a timely basis, any amount required to be so deposited or remitted
under this Agreement, or (b) any failure by the Sub-Servicer to timely provide
the Servicer any report required by this Agreement to be provided to the
Servicer (each such failure referred to herein as a "Sub-Servicer Delinquency").
The Servicer may impose on the Sub-Servicer a penalty of $500.00 for the second
Sub-Servicer Delinquency to occur hereunder ("Initial Sub-Servicer
Delinquency"), a penalty of $1,000.00 for the next Sub-Servicer Delinquency
occurring within two (2) years following an Initial Sub-Servicer Delinquency,
and a penalty of $1,500.00 for any other Sub-Servicer Delinquency occurring
within two (2) years following an Initial Sub-Servicer Delinquency; provided,
however, that if no Sub-Servicer Delinquency occurs during any two (2) year
period, the first Sub-Servicer Delinquency thereafter shall be deemed to be an
"Initial Sub-Servicer Delinquency". The penalties provided for in this paragraph
are not intended to constitute liquidated damages. The rights and remedies of
the Servicer under this Agreement are cumulative with, and not exclusive of, any
other rights or remedies which it would otherwise have.
Section 4.02 Waiver of Defaults.
The Servicer may waive any default by the Sub-Servicer in the performance
of its obligations hereunder and its consequences. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 4.03 Other Remedies of Servicer.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Servicer, in addition to the rights
specified in Section 4.01, shall have the right, in its own name, to take all
actions now or hereafter existing at law, in equity or by statute to enforce its
rights and remedies (including the institution and prosecution of all judicial,
administrative and other proceedings and the filing of proofs of claim and debt
in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default.
ARTICLE V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights, obligations
and responsibilities of the Sub-Servicer shall terminate (without payment of any
penalty or termination fee) (i) upon the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan and
the disposition of all REO Property and the remittance of all funds due
hereunder; (ii) by mutual consent of the Sub-Servicer and the Servicer in
writing; (iii) pursuant to Section 5.02 of this Agreement; (vi) at the option of
any purchaser of one or more Mortgage Loans pursuant to the Pooling and
Servicing Agreement, upon such purchase and only with respect to such purchased
Mortgage Loan or Mortgage Loans; (iv) if the Servicer shall for any reason no
longer act in such capacity under the Pooling and Servicing Agreement
(including, without limitation, by reason of any Event of Default) and the
Trustee shall either assume or terminate the Sub-Servicer in accordance with
Section 4.16 of the Pooling and Servicing Agreement, or (v) upon termination of
the Pooling and Servicing Agreement.
In the event the Sub-Servicer is not an acceptable or approved master
servicer or primary servicer to the Rating Agencies at the time the Trustee or a
successor Servicer becomes successor Servicer, the Sub-Servicer shall have 30
days after notice from the Trustee or the successor Servicer to either (i) cure
such failure or (ii) assign this Agreement to a Successful Sub-Servicing Bidder
(as defined below) subject, if applicable, to the terms of the Mortgage Loan
documents. If the Sub-Servicer fails to either (i) cure such failure or (ii)
assign this Agreement to a Successful Sub-Servicing Bidder, the Trustee or the
successor Servicer may terminate this Agreement.
A "Successful Sub-Servicing Bidder" will be any prospective sub-servicer
candidate reasonably acceptable to the Depositor, the successor Servicer and
acceptable to the Rating Agencies, as evidenced by written confirmation from the
Rating Agencies that the assumption by such Successful Sub-Servicing Bidder of
this Agreement, will not cause the downgrade, withdrawal or qualification of the
then current ratings of the Certificates or violate the terms of any Mortgage
Loan documents, which candidate would be eligible to act as Sub-Servicer under
this Agreement.
Section 5.02 Termination With Cause.
The Servicer may, at its sole option, terminate any rights the
Sub-Servicer may have hereunder with respect to any or all of the Mortgage
Loans, as follows:
(a) as provided in Section 4.01 of this Agreement upon the occurrence of
an Event of Default;
(b) following the breach of any representation or warranty under this
Agreement; or
(c) either Rating Agency (A) reduces the rating assigned by it to one or
more Classes of the respective Certificates (or places such rating on "watch"
status) as a result of the sub-servicing of the Mortgage Loans by the
Sub-Servicer, or (B) advises the Servicer or Trustee that it will cause a
qualification, downgrade or withdrawal (or place on "watch" status) of such
rating due to the continued servicing by the Sub-Servicer.
Any notice of termination shall be in writing and delivered to the
Sub-Servicer as provided in Section 6.05 of this Agreement.
Section 5.03 Reserved.
Section 5.04 Termination of Duties with Respect to Specially Serviced
Mortgage Loans.
At such time as any Mortgage Loan becomes a Specially Serviced Mortgage
Loan, the obligations and duties of the Sub-Servicer set forth herein with
respect to such Specially Serviced Mortgage Loan that are required to be
performed by the Special Servicer under the Pooling and Servicing Agreement
shall cease in accordance with Section 3.01(c) of this Agreement. The
Sub-Servicer shall continue to perform all of its duties hereunder with respect
to the Specially Serviced Mortgage Loans to the extent set forth in Section 3.01
of this Agreement. If a Specially Serviced Mortgage Loan becomes a Corrected
Mortgage Loan, the Sub-Servicer shall commence servicing such Corrected Loan
pursuant to the terms of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Prior to termination of the Sub-Servicer's responsibilities and duties
under this Agreement pursuant to Section 3.04, 4.01, 5.01 or 5.02 of this
Agreement, the Servicer shall (i) succeed to and assume all of the
Sub-Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which satisfies the criteria for a
successor Sub-Servicer in Section 3.02 of this Agreement and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Sub-Servicer under this Agreement accruing following the termination of the
Sub-Servicer's responsibilities, duties and liabilities under this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall, upon the request of the Servicer, make available
its financial statements and other records relevant to the performance of the
Sub-Servicer's obligations hereunder.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. At the Servicer's option, the
closing shall be either by telephone, confirmed by letter or wire as the parties
shall agree, or conducted in person, at such place as the parties shall agree.
The closing shall be subject to the execution and delivery of the Pooling
and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following documents:
(a) to be provided by the Sub-Servicer:
(1) this Agreement executed by the Sub-Servicer;
(2) an Officer's Certificate of the Sub-Servicer, dated the Closing
Date and in the form of Exhibit B hereto, including all attachments
thereto;
(3) an Opinion of Counsel of the Sub-Servicer, dated the Closing
Date and substantially in the form of Exhibit D hereto; and
(4) the account certifications in the form of Exhibit F hereto
required by Sections 3.01(c)(3), (5) & (6) of this Agreement, fully
completed; and
(b) to be provided by the Servicer:
(1) this Agreement executed by the Servicer; and
(2) the Mortgage Loan Schedule, with one copy to be attached to each
counterpart of this Agreement as Exhibit A hereto; and
(3) the Pooling and Servicing Agreement substantially in the form of
Exhibit C hereto.
Section 6.05 Notices.
Except as provided herein, all demands, notices, consents and
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered to the following addresses:
(i) if to the Servicer:
Wachovia Bank, National Association
Commercial Real Estate Services
NC 1075
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Reference: GE Commercial Mortgage Corporation,
Series 2006-C1
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Wachovia Bank, National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: GE Commercial Mortgage Corporation,
Series 2006-C1
(ii) if to the Sub-Servicer:
Bank of America, National Association
Capital Markets Servicing Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Servicing Manager
Reference: GE Series 2006-C1
with copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other address as may hereafter be furnished to the other party by
like notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of New York, except
to the extent preempted by Federal Law.
Section 6.09 Protection of Confidential Information.
The Sub-Servicer shall keep confidential and shall not divulge to any
party other than the Servicer, the Depositor, the Special Servicer or the
Trustee, without the Servicer's prior written consent, any information
pertaining to the Mortgage Loans or any borrower thereunder, except to the
extent that it is appropriate for the Sub-Servicer to do so in working with
third-party vendors, property inspectors, legal counsel, auditors, taxing
authorities or other governmental agencies or in accordance with this Agreement.
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Servicer is conveying, and the
Sub-Servicer is receiving, only a contract for servicing the Mortgage Loans.
Accordingly, the parties hereby acknowledge that the Trustee remains the sole
and absolute beneficial owner of the Mortgage Loans and all rights related
thereto.
Section 6.11 Third Party Beneficiary.
The Depositor, the Trustee, for the benefit of the Certificateholders and
the Trustee (as holder of the Uncertificated Lower-Tier Interests, shall be a
third party beneficiary under this Agreement, provided that, except to the
extent the Trustee or its designee assumes the obligations of the Servicer
hereunder as contemplated by Section 6.12 of this Agreement, none of the
Depositor, the Trustee, the Trust Fund, any successor Servicer, or any
Certificateholder or any holder of a Serviced Pari Passu Loan or Serviced B Note
shall have any duties under this Agreement or any liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable
by the Sub-Servicer and the Servicer and the respective successors and assigns
of the Sub-Servicer and the Servicer. This Agreement shall not be assigned,
pledged or hypothecated by the Sub-Servicer to a third party except as otherwise
specifically provided for herein. If the Servicer shall for any reason no longer
act in such capacity under the Pooling and Servicing Agreement (including, by
reason of an Event of Default (as defined therein)), the Trustee or its designee
shall thereupon assume all of the rights and, except to the extent they arose
prior to the date of assumption, obligations of the Servicer under this
Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference only,
and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied or terminated except
by a written agreement conforming to the provisions of Section 6.18 of this
Agreement. All prior negotiations or representations of the parties are merged
into this Agreement and shall have no force or effect unless expressly stated
herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Servicer each agree to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the Sub-Servicer
and the Servicer. No amendment to the Pooling and Servicing Agreement that
purports to change the rights or obligations of the Sub-Servicer hereunder shall
be effective against the Sub-Servicer without the express written consent of the
Sub-Servicer.
IN WITNESS WHEREOF, the Sub-Servicer and the Servicer have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Bank of America Exhibit A
GE 2006-C1
Property Balance Sub-Service Fee
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 24,500,000 0.0001
17 ▇▇▇▇▇▇▇ & Palermo Apartments 19,951,392 0.0001
17.1 Messina Apartments and Two Retail Buildings 11,117,685 0.0000
17.2 Palermo Apartments 8,833,707 0.0000
20 Storage Express Portfolio 17,685,000 0.0001
20.1 Storage Express - Lauderhill 12,585,000 0.0000
20.2 Storage Express - Pompano Beach 5,100,000 0.0000
21 Raley's ▇▇▇▇▇▇▇▇ 16,227,406 0.0001
28 Self Storage I - Honolulu, HI 12,573,400 0.0001
32 University Commons-▇▇▇▇▇▇ 11,728,950 0.0001
34 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 10,984,516 0.0001
38 AAA Quality Self Storage 10,000,000 0.0001
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 9,680,000 0.0001
44 Victorian Village Townhomes 8,800,000 0.0001
45 Abby Self Storage 8,780,000 0.0001
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 7,000,000 0.0001
95 Bay Area Self Storage 4,762,500 0.0001
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Storage Center 4,244,130 0.0001
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments 4,141,237 0.0001
121 Walgreens - Pueblo, CO 3,412,500 0.0001
123 Walgreens - Otsego 3,204,500 0.0001
127 Walgreens - San ▇▇▇▇▇▇ 3,100,000 0.0001
131 Walgreens - Key Largo 2,990,600 0.0001
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Storage 2,200,000 0.0001
HFF Weston Ranch - Sterling 4,000,000 0.0005
HFF Shops at Weston Ranch - Sterling 2,200,000 0.0005
EXHIBIT B
SUB-SERVICER'S OFFICER'S CERTIFICATE
I, ______________________________, hereby certify that I am the duly
elected __________________________ of [Sub-Servicer], a corporation organized
under the laws of the State of ______________________ (the "Sub-Servicer") and
further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy of the
articles of incorporation of the Sub-Servicer which are in full force and
effect on the date hereof and which have been in effect without amendment,
waiver, rescission or modification since _______________________________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy of the
by-laws of the Sub-Servicer which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ____________.
3. Attached hereto as Exhibit 3 is an original certificate of good standing
of the Sub-Servicer, issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy of the
corporate resolutions of the Board of Directors of the Sub-Servicer
authorizing the Sub-Servicer to execute and deliver the Sub-Servicing
Agreement, dated as of _________, 200__ (the "Sub-Servicing Agreement"),
by and between the Sub-Servicer and Wachovia Bank, National Association
and such resolutions are in effect on the date hereof and have been in
effect without amendment, waiver, rescission or modification since
____________________.
5. Either (i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Sub-Servicer of or compliance by the Sub-Servicer with
the Sub-Servicing Agreement or the consummation of the transactions
contemplated by the Sub-Servicing Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the Sub-Servicer.
6. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Sub-Servicing Agreement, conflicts or will
conflict with or results or will result in a breach of or constitutes or
will constitute a default under the charter or by-laws of the
Sub-Servicer, the terms of any indenture or other agreement or instrument
to which the Sub-Servicer is a party or by which it is bound or to which
it is subject, or any statute or order, rule, regulation, writ, injunction
or decree of any court, governmental authority or regulatory body to which
the Sub-Servicer is subject or by which it is bound.
7. There is no action, suit, proceeding or investigation pending or to the
best of my knowledge threatened against the Sub-Servicer which, in our
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
conditions, properties or assets of the Sub-Servicer or in any material
impairment of the right or ability of the Sub-Servicer to carry on its
business substantially as now conducted or in any material liability on
the part of the Sub-Servicer or which would draw into question the
validity of the Sub-Servicing Agreement or of any action taken or to be
taken in connection with the transactions contemplated hereby, or which
would be likely to impair materially the ability of the Sub-Servicer to
perform under the terms of the Sub-Servicing Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Sub-Servicer, signed the Sub-Servicing Agreement and
any other document delivered prior hereto or on the date hereof in
connection with the Sub-Servicing Agreement, was, at the respective times
of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Sub-Servicer, who
holds the office set forth opposite his or her name on Exhibit 5, and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The Sub-Servicer is duly authorized to engage in the transactions
described and contemplated in the Sub-Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Sub-Servicer.
Dated: By
------------------------------ --------------------------------
Name:
--------------------------------
[Seal] Title: [Vice] President
I, _______________________, an [Assistant] Secretary of [Sub-Servicer],
hereby certify that ___________________________ is the duly elected, qualified
and acting [Vice] President of the Sub-Servicer and that the signature appearing
above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By
------------------------------ --------------------------------
Name:
--------------------------------
[Seal] Title: [Assistant] Secretary
EXHIBIT 5
to
Sub-Servicer's Officer's Certificate
Name Title Signature
---- ----- ---------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
EXHIBIT C
POOLING AND SERVICING AGREEMENT
[SEE EXHIBIT 4.1 TO FORM 8-K]
EXHIBIT D
FORM OF SUB-SERVICER OPINION
Based upon the foregoing, I am of the opinion that:
i. The Sub-Servicer is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
_____________________ and has the requisite power and authority, corporate or
other, to own its properties and conduct its business, as presently conducted by
it, and to enter into and perform its obligations under the Sub-Servicing
Agreement.
ii. The Servicing Agreement has been duly and validly authorized, executed
and delivered by the Sub-Servicer and, upon due authorization, execution and
delivery by the Servicer will constitute the valid, legal and binding agreements
of the Sub-Servicer, enforceable against the Sub-Servicer in accordance with its
terms, except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the rights of creditors, and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law.
iii. No consent, approval, authorization or order of the State of
__________________________ or federal court or governmental agency or body is
required for the consummation by the Sub-Servicer of the transactions
contemplated by the terms of the Servicing Agreement, except for those consents,
approvals, authorizations or orders which previously have been obtained.
iv. The fulfillment by the Sub-Servicer of the terms of the Servicing
Agreement will not result in a breach of any term or provision of the charter or
bylaws of the Sub-Servicer or any State of _________________ or federal statute
or regulation or conflict with, result in a breach, violation or acceleration of
or constitute a default under, the terms of any indenture or other material
agreement or instrument to which the Sub-Servicer is a party or by which it is
bound or any order or regulation of the State of _______ or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Sub-Servicer.
This opinion letter is rendered for the sole benefit of the persons or
entities to which it is addressed, and no other person or entity, except
___________________, is entitled to rely hereon without my prior written
consent. Copies of this opinion letter may not be furnished to any other person
or entity, nor may any portion of this opinion letter be quoted, circulated or
referred to in any other document without my prior written consent, except that
copies of this opinion letter may be distributed to the parties to the
transaction contemplated by the Pooling and Servicing Agreement.
Very truly yours,
EXHIBIT E
QUARTERLY SERVICING CERTIFICATION
Sub-Servicer:
------------------
RE: Series ________
Pursuant to the Servicing Agreement(s) between Wachovia Bank, National
Association and [Sub-Servicer], we certify with respect to each mortgage loan
serviced by us for Wachovia Bank, National Association that, as of the
quarter ending ____________________, except as otherwise noted below:
All taxes, assessments and other governmental charges levied against the
mortgaged premises, ground rents payable with respect to the mortgaged premises,
if any, which would be delinquent if not paid, have been paid.
Based on [Sub-Servicer's] monitoring of the insurance in accordance with the
Servicing Standard, all required insurance policies are in full force and effect
on the mortgaged premises in the form and amount and with the coverage required
by the Servicing Agreement(s).
All necessary action has been taken to continue all UCC Financing Statements in
favor of the originator of each mortgage loan or in favor of any assignee prior
to the expiration of such UCC Financing Statements.
All reserves are maintained and disbursed in accordance with the loan documents
and no obligation for which a reserve is held has not been completed within the
time required by the applicable document.
EXCEPTIONS:
------------------------------------------------------------------
------------------------------ ------------------------------
Servicing Officer Date
EXHIBIT F
FORM OF ACCOUNT CERTIFICATION
Securitization:
---------------------------------------------------------------
Sub Servicer:
---------------------------------------------------------------
___ New Account ___ Change of Account Information
Indicate purpose of account (check all that apply):
___ Principal & Interest ___ Deposit Clearing
___ Taxes & Insurance ___ Disbursement Clearing
___ Reserves (non-interest bearing) ___ Suspense
Reserves (interest bearing)
Account Number:
---------------------------------------------------------------
Account Name:
---------------------------------------------------------------
Depository Institution (and Branch):
Name:
-------------------------------------------------------------------
Street:
-----------------------------------------------------------------
City, State, Zip:
-------------------------------------------------------
Rating Agency: Rating:
--------------------- -----------------------
Please note that the name of the account must follow the guideline
specifications detailed in the applicable agreement.
Prepared by:
---------------------------------------------------------------
Signature:
-----------------------------------------------------------------
Title:
---------------------------------------------------------------------
Date:
----------------------------------------------------------------------
Telephone: Fax:
----------------------------- ---------------------
------------------------------------------------------------------------------
EXHIBIT G
FORM OF
COLLECTION REPORT
Series _____
Month of ____________
------------------------------------------------------------------------------------------------------------------------------------
Subservicers
Master Scheduled Scheduled Scheduled Scheduled Scheduled Curtailed
Services Loan Due Mtg Net Beginning Schedule Principal Interest Service Curtailed Prepayment
Loan # # Date Rate Mtg Rate Balance P&I Amount Payment Payment Fee Prepayment Date
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Master Prepayment Other Actual Actual Net Actual Payment
Services Interest Principal Principal Interest Service Late Assumption Additional Loan
Loan # Excess/Short Adjustment Payment Payment Fees Charges Fees Fees Status
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Total Reserve
Master Scheduled Actual Loan Bal Next Bal
Services Distribution Ending As of Payment As Of Date of
Loan # Amount Balance Distribution Date Due Prior Month End Maturity
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------
Loan
Status
A - payment not received but still in grace period
B - late payment but less than 1 month delinquent
O - Current
1 - One month delinquent
2 - Two months delinquent
3 - Three months delinquent
4 - Assumed Schedule Payment
5 - Prepaid in Full
6 - Specially Serviced
7 - in foreclosure
9 - REO
10 - DPO
11 - Modification
Prepared By
Approved By
EXHIBIT H
FORM OF CERTIFICATE OF INSURANCE
Sub-Servicer:
------------------------
RE: Series ______
Pursuant to the Sub-Servicing Agreement(s) between Wachovia Bank, National
Association and [Sub-Servicer], based on [Sub-Servicer's] monitoring of the
insurance in accordance with the Servicing Standard, we certify with respect to
each Mortgage Loan serviced by us for Wachovia Bank, National Association that
all required insurance policies are in full force and effect on the mortgaged
premises in the form and amount and with the coverage required by the Servicing
Agreement(s).
------------------------- ----------------------------
Servicing Officer Date
EXHIBIT I
Reserved.
EXHIBIT J
MONTHLY SERVICING ACCOUNTS CERTIFICATION
Servicer:
------------------------
RE: Series ______________
Pursuant to the Servicing Agreement(s) between Wachovia Bank, National
Association and the above named Servicer, I certify with respect to each
transaction serviced by us, as noted above, for Wachovia Bank, National
Association that as of ________________ (Determination Date) all collection
accounts and servicing accounts have been properly reconciled and the
reconciliations have been reviewed and approved by Servicer's management, except
as otherwise noted below:
EXCEPTIONS:
-------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------------------------- ------------------------------
Servicing Officer Date
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................1
Section 1.01 Defined Terms...........................................1
ARTICLE II SERVICER'S ENGAGEMENT OF SUB-SERVICER TO PERFORM
SERVICING RESPONSIBILITIES....................................2
Section 2.01 Contract for Servicing; Possession of Mortgage
Loan Documents..........................................2
Section 2.02 Notice of Breach of Representations and Warranties......3
ARTICLE III SERVICING OF THE MORTGAGE LOANS...............................3
Section 3.01 Sub-Servicer to Service.................................3
Section 3.02 Merger or Consolidation of the Sub-Servicer............12
Section 3.03 Limitation on Liability of the Sub-Servicer and
Others.................................................13
Section 3.04 Sub-Servicer Not to Resign.............................13
Section 3.05 No Transfer or Assignment of Servicing.................13
Section 3.06 Indemnification........................................14
ARTICLE IV DEFAULT......................................................14
Section 4.01 Events of Default......................................14
Section 4.02 Waiver of Defaults.....................................18
Section 4.03 Other Remedies of Servicer.............................18
ARTICLE V TERMINATION..................................................18
Section 5.01 Termination............................................18
Section 5.02 Termination With Cause.................................19
Section 5.03 Reserved...............................................20
Section 5.04 Termination of Duties with Respect to Specially
Serviced Mortgage Loans................................20
ARTICLE VI MISCELLANEOUS................................................20
Section 6.01 Successor to the Sub-Servicer..........................20
Section 6.02 Financial Statements...................................20
Section 6.03 Closing................................................20
Section 6.04 Closing Documents......................................21
Section 6.05 Notices................................................21
Section 6.06 Severability Clause....................................22
Section 6.07 Counterparts...........................................23
Section 6.08 Governing Law..........................................23
Section 6.09 Protection of Confidential Information.................23
Section 6.10 Intention of the Parties...............................23
Section 6.11 Third Party Beneficiary................................23
Section 6.12 Successors and Assigns; Assignment of Agreement........23
Section 6.13 Waivers................................................24
Section 6.14 Exhibits...............................................24
Section 6.15 General Interpretive Principles........................24
Section 6.16 Complete Agreement.....................................24
Section 6.17 Further Agreement......................................24
Section 6.18 Amendments.............................................24
EXHIBIT A MORTGAGE LOAN SCHEDULE......................................A-1
EXHIBIT B SUB-SERVICER'S OFFICER'S CERTIFICATE........................B-1
EXHIBIT 5 SUB-SERVICER'S OFFICER'S CERTIFICATE........................5-1
EXHIBIT C POOLING AND SERVICING AGREEMENT.............................C-1
EXHIBIT D FORM OF SUB-SERVICER OPINION................................D-1
EXHIBIT E FORM OF QUARTERLY SERVICING CERTIFICATION...................E-1
EXHIBIT F FORM OF ACCOUNT CERTIFICATION...............................E-1
EXHIBIT G FORM OF COLLECTION REPORT...................................G-1
EXHIBIT H FORM OF CERTIFICATE OF INSURANCE............................H-1
EXHIBIT I RESERVED....................................................I-1
EXHIBIT J FORM OF MONTHLY SERVICING ACCOUNTS CERTIFICATION............J-1