SCHEDULE
to the
ISDA 2002 Master Agreement
dated as of November 15, 2005,
between
CITIBANK, N.A.,
a national banking association organized under the laws of the United States
("Party A")
and
CD 2005-CD1 COMMERCIAL MORTGAGE TRUST,
a common law trust organized and existing
under the laws of the State of New York
("Party B")
The only Transaction hereunder is the Transaction evidenced by the
Confirmation identified by Transaction Reference Number 49312, dated
November 15, 2005 between Party A and Party B.
Part 1
Termination Provisions
In this Agreement:
(a) "SPECIFIED ENTITY" means, in relation to Party A and Party B, for
the purposes of Section 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(iv), not
applicable.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section
14 of this Agreement.
(c) The "BREACH OF AGREEMENT; REPUDIATION OF AGREEMENT" provisions of
Section 5(a)(ii) will apply to Party A and will not apply to Party B.
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(d) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B.
(e) The "MISREPRESENTATION" provisions of Section 5(a)(iv) will apply
to Party A and will not apply to Party B.
(f) The "DEFAULT UNDER SPECIFIED TRANSACTION" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
(g) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply
to Party A and will not apply to Party B.
(h) The "BANKRUPTCY" provisions of Section 5(a)(vii) will apply to
Party A and will apply to Party B; provided that, with respect to Party B only,
Section 5(a)(vii)(2) will not apply.
(i) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(v) of
this Agreement will not apply to Party A and will not apply to Party B.
(j) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will
not apply to Party A and will not apply to Party B.
(k) "TERMINATION CURRENCY" means United States Dollars.
(l) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e),
both Party A and Party B agree that any amounts payable by the Trust to Party A
under Section 6(e), if any, in connection with any Event of Default or
Termination Event will be payable only if a replacement swap counterparty is
procured (which Party B shall be obligated to attempt to procure in good faith
and in a reasonably commercial manner, except in the event of an Additional
Termination Event under Part 1(m) herein) and only to the extent that Party B
receives any payment from such replacement swap counterparty as consideration
for entering into the replacement swap agreement (less any costs or expenses
incurred by Party B in connection thereto).
(m) "ADDITIONAL TERMINATION EVENTS".
(1) Each of the following shall constitute an Additional Termination Event
with respect to Party B, in which each such case the sole Affected Party shall
be Party B, Party A shall be the party entitled to designate an Early
Termination Date and each Transaction shall be an Affected Transaction:
(i) Amendments. The entry into any amendment, modification or
supplement of the Pooling and Servicing Agreement that would adversely
affect the rights of Party A hereunder in a material manner. Any payments
owed to Party A under Section 6(e) of this Agreement as a result of such
Additional Termination Event shall be made without regard to
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the effect of any such amendment, modification or supplement. Party B will
furnish to Party A a copy of each proposed and each executed agreement
evidencing any such amendment, modification or supplement, as applicable.
(2) Each of the following shall constitute an Additional Termination Event
with respect to Party A, in which each such case the sole Affected Party shall
be Party A, Party B shall be the party entitled to designate an Early
Termination Date and each Transaction shall be an Affected Transaction:
(i) The failure by Party A to either (A) post Eligible Collateral, (B)
transfer its rights and obligations to an eligible transferee or (C) obtain
a guarantor of Party A's obligations in accordance with subsection (n)
below (with respect to which, as provided therein, Party A shall be the
sole Affected Party).
(n) "DOWNGRADE OF PARTY A".
(1) A "Collateralization Event" will be in effect if: (a) either (i) the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A's guarantor (or if Party A has no guarantor, Party A) are
rated below "A1" by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or are rated
"A1" by Moody's and such rating is on watch for possible downgrade (but only for
so long as it is on watch for possible downgrade) or (ii) the unsecured,
unguaranteed and otherwise unsupported short-term debt obligations of Party A's
guarantor (or if Party A has no guarantor, Party A) are rated below "P-1" by
Moody's or are rated "P-1" by Moody's and such rating is on watch for possible
downgrade (but only for so long as it is on watch for possible downgrade); (b)
no short-term rating is available from Moody's and the unsecured, unguaranteed
and otherwise unsupported long-term senior debt obligations of Party A's
guarantor (or if Party A has no guarantor, Party A) are rated below "Aa3" by
Moody's or are rated "Aa3" by Moody's and such rating is on watch for possible
downgrade (but only for so long as it is on watch for possible downgrade); (c)
either (i) the unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A's guarantor (or if Party A has no guarantor, Party A) are
rated below "A-1" by Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") or (ii) if Party A's guarantor (or if Party
A has no guarantor, Party A) does not have a short-term rating from S&P, the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A's guarantor (or if Party A has no guarantor, Party A) are
rated below "A" by S & P; or (d) either (i) the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of Party A's guarantor
(or if Party A has no guarantor, Party A) are rated below "A+" by Fitch or are
rated "A+" by Fitch and such rating is on watch for possible downgrade (but only
for so long as it is on watch for possible downgrade) or (ii) the unsecured,
unguaranteed and otherwise unsupported short-term debt obligations of Party A's
guarantor (or if Party A has no guarantor, Party A) are rated below "F-1+" by
Fitch. For the avoidance of doubt, the parties hereby acknowledge and agree that
notwithstanding the occurrence of a Collateralization Event, this Agreement and
each Transaction hereunder shall continue to qualify as a Swap Agreement for
purposes of the distribution priorities in Section 4.01 of the Pooling and
Servicing Agreement.
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Within 10 Business Days after a Collateralization Event has occurred, and
so long as such Collateralization Event is continuing at such time, Party A
shall, at its own expense, either (i) post collateral according to the terms of
the 1994 ISDA Credit Support Annex (New York Law) between Party A and Party B,
dated as of November 15, 2005, including Paragraph 13 thereof (the "Credit
Support Annex"), or (ii) obtain a substitute counterparty or guarantor of Party
A's obligations that (a) is confirmed in writing by the Rating Agencies (as
defined in the Pooling and Servicing Agreement), (b) satisfies the Hedge
Counterparty Ratings Requirement (as defined herein) and (c) in the case of the
substitute counterparty, assumes the obligations of Party A under this Agreement
(through an assignment and assumption agreement in form and substance reasonably
satisfactory to Party B) or replaces the outstanding Transactions hereunder with
transactions on identical terms, except that Party A shall be replaced as
counterparty, provided that such substitute counterparty, as of the date of such
assumption or replacement, will not, as a result thereof, be required to
withhold or deduct on account of tax under the Agreement or the new
transactions, as applicable, and such assumption or replacement will not lead to
a termination event or event of default occurring under the Agreement or new
transactions, as applicable. In the case of a substitute counterparty, upon
successful consummation of the assignment to such substitute counterparty, Party
A's obligations to post collateral as contemplated in this Part 1(n)(1) shall
terminate and Party B shall release its security interest in, and return to
Party A, any then-posted collateral. To the extent that Party A elects or is
required to post collateral pursuant to this Part 1(n)(1), Party A shall request
its legal counsel to deliver to each applicable Rating Agency, within thirty
(30) calendar days of the occurrence of such Collateralization Event, an opinion
as to the enforceability of the Credit Support Annex.
"Hedge Counterparty Ratings Requirement" shall mean, with respect to any
prospective guarantor or prospective substitute swap counterparty, that the
ratings of such prospective guarantor or prospective substitute swap
counterparty are such that a Collateralization Event would not be in effect if
such prospective guarantor or substitute swap counterparty became a guarantor or
substitute swap counterparty hereunder.
(2) A "Rating Agency Trigger Event" will be in effect if at any time after
the date hereof Party A shall fail to satisfy the Swap Counterparty Ratings
Threshold. "Swap Counterparty Ratings Threshold" shall mean: (a) either (i) the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A's guarantor (or if Party A has no guarantor, Party A) are
rated at least "BBB" by S&P and the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of Party A's guarantor (or if Party A
has no guarantor, Party A) are rated at least "A-3" by S&P or (ii) if Party A's
guarantor (or if Party A has no guarantor, Party A) does not have a short-term
rating from S&P, the unsecured, unguaranteed and otherwise unsupported long-term
senior debt obligations of Party A's guarantor (or if Party A has no guarantor,
Party A) are rated at least "BBB+" by S & P; and (b) either (i) the unsecured,
unguaranteed and otherwise unsupported long-term senior debt obligations of
Party A's guarantor (or if Party A has no guarantor, Party A) are rated at least
"A3" by Moody's (and such rating is not on watch for possible downgrade) and the
unsecured, unguaranteed and otherwise unsupported short-term debt obligations of
Party A's guarantor (or if Party A has no guarantor, Party A) are rated at least
P-2 by Moody's (and such rating is not on watch for possible downgrade) or (ii)
no short-term rating is available from Moody's and the unsecured, unguaranteed
and otherwise unsupported long-term senior debt obligations of Party A's
guarantor (or if Party A has no guarantor, Party A) are rated at least "A2" by
Moody's.
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For the avoidance of all doubts, the parties hereby acknowledge and agree
that notwithstanding the occurrence of a Rating Agency Trigger Event, this
Agreement and each Transaction hereunder shall continue to qualify as a Swap
Agreement for purposes of the distribution priorities in Section 4.01 of the
Pooling and Servicing Agreement.
(3) Following a Rating Agency Trigger Event, Party A shall be required to,
within 30 calendar days of such Rating Agency Trigger Event and at its sole
expense, obtain either a substitute counterparty or guarantor of Party A's
obligations hereunder that (A) is confirmed in writing by the Rating Agencies,
(B) satisfies the Hedge Counterparty Ratings Requirement and (C) in the case of
the substitute counterparty, assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or replaces the outstanding Transactions
hereunder with transactions on identical terms, except that Party A shall be
replaced as counterparty, provided that such substitute counterparty, as of the
date of such assumption or replacement, will not, as a result thereof, be
required to withhold or deduct on account of tax under the Agreement or the new
transactions, as applicable, and such assumption or replacement will not lead to
a termination event or event of default occurring under the Agreement or new
transactions, as applicable. In the case of a substitute counterparty, upon
successful consummation of the assignment to such substitute counterparty, Party
A's obligations to post collateral as contemplated in this Part 1(n)(1) shall
terminate and Party B shall release its security interest in, and return to
Party A, any then-posted collateral. For the avoidance of doubt, until such
guarantor or substitute counterparty has been obtained and installed, Party A
shall continue to post collateral under the terms of the Credit Support Annex.
Part 2
Tax Representations
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B will make
the following representation:
It is not required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, of any Relevant Jurisdiction to make
any deduction or withholding for or on account of any Tax from any payment
(other than interest under Section 9(h) of this Agreement) to be made by it to
the other party under this Agreement. In making this representation, it may rely
on (i) the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement and (iii) the satisfaction of the
agreement of the other party contained in Section 4(d) of this Agreement, except
that it will not be a breach of this representation where reliance is placed on
clause (ii) above and the other party does not deliver a form or documents under
Section 4(a)(iii) by reason of material prejudice to its legal or commercial
position.
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(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of the
Agreement, Party A and Party B make the representations specified below, if any:
The following representation will apply to Party A:
It is a national banking association organized under the laws of the United
States and its U.S. taxpayer identification number is ▇▇-▇▇▇▇▇▇▇. It is
"exempt" within the meaning of Treasury Regulation sections 1.6041-3(p) and
1.6049-4(c) from information reporting on Form 1099 and backup withholding.
The following representation will apply to Party B:
It is a common law trust created under the laws of the State of New York.
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Part 3
Agreement to Deliver Documents
For the purpose of Section 4(a) of this Agreement:
I. Tax forms, documents or certificates to be delivered are:
Party required to Form/Document/ Date by which to
deliver document Certificate be delivered
----------------------- ----------------------------------- -------------------------------
(i) Party A and Party B As required under Section 4(a)(i) Promptly upon execution of this
of the Agreement, IRS Form W-9. Agreement (in the case of Party
B, promptly upon the making of
the REMIC election); and
promptly upon learning that any
form previously provided by the
party has become obsolete or
incorrect.
II. Other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by
deliver document Certificate be delivered Section 3(d)
----------------------- --------------------------------------- ----------------------------------- ------------
(a) Party B Statements to Certificateholders of As soon as available. Yes
Party B
(b) Party B Certified copies of all corporate Upon execution and delivery of Yes
authorizations and any other documents this Agreement
with respect to the execution, delivery
and performance of this Agreement and
the Pooling and Servicing Agreement
7
Party required to Form/Document/ Date by which to Covered by
deliver document Certificate be delivered Section 3(d)
----------------------- --------------------------------------- ----------------------------------- ------------
(c) Party A and Party B Legal opinion from counsel with respect Upon execution and delivery of Yes
to enforceability and related matters this Agreement
(d) Party A and Party B Certificate of authority and specimen Upon execution and delivery of Yes
signatures of individuals executing this Agreement and thereafter upon
this Agreement, and any Confirmations request of the other party
(e) Party B Executed copy of the Pooling and Upon execution and delivery thereof No
Servicing Agreement
Part 4
Miscellaneous
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY A:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director, Derivatives Operations
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
(For all purposes)
In addition, in the case of notices or communications relating to Section 5, 6,
11 or 13 of this Agreement, a second copy of any such notice or communication
shall be addressed to the attention of Party A's legal department as follows:
Address: Legal Department
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention: Department Head
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY B:
CD 2005-CD1 Commercial Mortgage Trust
Address: c/o LaSalle Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Global Securities and Trust Services Group-
CD 2005-CD1 Commercial Mortgage Trust
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Address: Citigroup Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: not applicable
Party B appoints as its Process Agent:
CD 2005-CD1 Commercial Mortgage Trust
c/o LaSalle Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Global Securities and Trust Services Group-
CD 2005-CD1 Commercial Mortgage Trust
(c) OFFICES. The provisions of Section 10(a) will apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(b) of this
Agreement:
Party A is not a Multibranch Party.
9
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent will be Party B.
(f) CREDIT SUPPORT DOCUMENT.
With respect to Party B: the Pooling and Servicing Agreement; provided
that only amounts with respect to (x) interest distributions paid in respect of
the Class A-2FL REMIC II Regular Interest on such Distribution Date and (y)
Yield Maintenance Charges and Prepayment Premiums on deposit in the Floating
Rate Account (as such terms are defined in the Pooling and Servicing Agreement)
held by the Paying Agent under the Pooling and Servicing Agreement (such
amounts, the "Trust Estate") shall constitute security for the obligations of
Party B to Party A under this Agreement.
With respect to Party A: the Credit Support Annex; provided that Party
A shall not be required to post any Eligible Collateral prior to the time
required pursuant to Part 1(n) hereof.
(g) CREDIT SUPPORT PROVIDER. Not Applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
(i) JURISDICTION. Section 13(b)(i) of the Agreement is hereby amended
by deleting in line 2 of paragraph 2 the word "non-" and by deleting paragraph
(iii) thereof. The following shall be added at the end of Section 13(b):
"Nothing in this provision shall prohibit a party from bringing an action to
enforce a money judgment in any other jurisdiction."
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
(k) ABSENCE OF LITIGATION. For the purpose of Section 3(c): "Specified
Entity" means in relation to Party A and Party B, none.
(l) NO AGENCY. The provisions of Section 3(g) will apply to this
Agreement.
(M) ADDITIONAL REPRESENTATION will apply. For the purpose of Section 3
of this Agreement, the following will constitute an Additional Representation:
(h) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to the other party on the date on which it enters into
a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the
contrary for that Transaction):
(1) NO RELIANCE. It is acting for its own account, and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is appropriate or
proper for it based upon its own judgment and
10
upon advice from such advisors as it has deemed necessary. It is
not relying on any communication (written or oral) of the other
party as investment advice or as a recommendation to enter into
that Transaction; it being understood that information and
explanations related to the terms and conditions of a Transaction
shall not be considered investment advice or a recommendation to
enter into that Transaction. It has not received from the other
party any assurance or guarantee as to the expected results of
that Transaction.
(2) EVALUATION AND UNDERSTANDING. It is capable of
evaluating and understanding (on its own behalf or through
independent professional advice), and understands and accepts,
the terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the financial and other risks
of that Transaction.
(3) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or an advisor to it in respect of that Transaction.
(i) ELIGIBLE CONTRACT PARTICIPANT. (a) It is an "eligible
contract participant" within the meaning of Section 1(a)(12) of
the Commodity Exchange Act, as amended (the "CEA"), (b) this
Agreement and each Transaction is subject to individual
negotiation by each party, and (c) neither this Agreement nor any
Transaction will be executed or traded on a "trading facility"
within the meaning of Section 1a(33) of the CEA.
(j) FINANCIAL INSTITUTION. With respect to Party A only, it is a
"financial institution" as defined in the Federal Deposit
Insurance Corporation Improvement Act of 1991 or Regulation EE
promulgated by the Federal Reserve Board thereunder."
(k) ERISA. The assets that are used in connection with the
execution, delivery and performance of this Agreement and the
Transactions entered into pursuant hereto are not the assets of
an employee benefit or other plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan described in Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), an entity whose
underlying assets include "plan assets" by reason of Department
of Labor regulation section 2510.3-101, or a governmental plan
that is subject to any federal, state, or local law that is
substantially similar to the provisions of Section 406 of ERISA
or Section 4975 of the Code.
(n) "NETTING OF PAYMENTS" Subparagraph Multiple Transaction Payment
Netting will not apply for purposes of Section 2(c) of this Agreement.
11
Part 5
Other Provisions
(a) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT.
(b) SEVERABILITY. Except as otherwise provided in Sections 5(b)(i) or
5(b)(ii) in the event that any one or more of the provisions contained in this
Agreement should be held invalid, illegal, or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor, in good faith negotiations, to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(c) ESCROW PAYMENTS. If by reason of the time difference between the
cities in which payments are to be made, it is not possible for simultaneous
payments to be made on any date on which both parties are required to make
payments hereunder, either party may at its option and in its sole discretion
notify the other party that payments on that date are to be made in escrow. In
this case the deposit of the payment due earlier on that date shall be made by
2:00 p.m. (local time at the place for the earlier payment) on that date with an
escrow agent selected by the party giving the notice, accompanied by irrevocable
payment instructions (i) to release the deposited payment to the intended
recipient upon receipt by the escrow agent of the required deposit of the
corresponding payment from the other party on the same date accompanied by the
irrevocable payment instructions to the same effect or (ii) if the required
deposit of the corresponding payment is not made on that same date, to return
the payment deposited to the party that paid it into escrow. The party that
elects to have payments made in escrow shall pay the costs of the escrow
arrangements and shall cause those arrangements to provide that the intended
recipient of the payment due to be deposited first shall be entitled to interest
on that deposited payment for each day in the period of its deposit at the rate
offered by the escrow agent for that day for overnight deposits in the relevant
currency in the office where it holds that deposited payment (at 11:00 am. local
time on that day) if that payment is not released by 5:00 p.m. on the date it is
deposited for any reason other than the intended recipients' failure to make the
escrow deposit it is required to make hereunder in a timely fashion.
(d) NOTICE OF EVENTS OF DEFAULT. Each party agrees, upon learning of
the occurrence of any event or commencement of any condition that constitutes
(or that with the giving of notice or passage of time or both would constitute)
an Event of Default or Termination Event with respect to such party, promptly to
give the other party notice of such event or condition (or, in lieu of giving
notice of such event or condition in the case of an event or condition that with
the giving of notice or passage of time or both would constitute an Event of
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Default or Termination Event with respect to the party, to cause such event or
condition to cease to exist before becoming an Event of Default or Termination
Event).
(e) RECORDING OF CONVERSATIONS. Each party hereto consents to the
recording of its telephone conversations relating to this Agreement or any
potential Transaction. To the extent that one party records telephone
conversations (the "RECORDING PARTY") and the other party does not (the
"NON-RECORDING PARTY"), the Recording Party shall, in the event of any dispute,
make a complete and unedited copy of such party's tape of the entire day's
conversations with the Non-Recording Party's personnel available to the
Non-Recording Party. The Recording Party's tapes may be used by either party in
any forum in which a dispute is sought to be resolved and the Recording Party
will retain tapes for a consistent period of time in accordance with the
Recording Party's policy unless one party notifies the other that a particular
transaction is under review and warrants further retention.
(f) LIMITATION OF LIABILITY. Without limiting the effect of any of the
express provisions of this Agreement, neither party shall be required to pay or
be liable to the other party for any consequential, indirect or punitive
damages, opportunity costs or lost profits.
(g) 2002 MASTER AGREEMENT PROTOCOL. The parties agree that the
definitions and provisions contained in Annexes 1 to 16 and Section 6 of the
2002 Master Agreement Protocol published by the International Swaps and
Derivatives Association, Inc. on 15th July, 2003 are incorporated into and apply
to this Agreement.
(h) SET-OFF. Notwithstanding Section 6(f) but without affecting the
provisions of this Agreement requiring the calculation of certain net payment
amounts, as a result of an Event of Default or Additional Termination Event or
otherwise, all payments under this Agreement will be made without setoff, offset
or counterclaim.
Part 6
Provisions Relating to the Pooling and Servicing Agreement
(a) ADDITIONAL DEFINITIONS.
(i) "CLASS A-2FL CERTIFICATES" means the Commercial Mortgage
Pass-Through Certificates, Series 2005-CD1, Class A-2FL, issued by Party B.
(ii) "POOLING AND SERVICING AGREEMENT" means the Pooling and
Servicing Agreement dated and effective as of November 1, 2005, among
Citigroup Commercial Mortgage Securities Inc., as Depositor, Midland Loan
Services, Inc., as Master Servicer, LNR Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, and ABN AMRO Bank
N.V., as Fiscal Agent.
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(b) LIMITED RECOURSE. The obligations of Party B under this Agreement
are limited recourse obligations of Party B, payable solely from (x) payments
out of interest distributions paid in respect of the Class A-2FL REMIC II
Regular Interest on such Distribution Date and (y) Yield Maintenance Charges and
Prepayment Premiums, subject to and in accordance with the terms of the Pooling
and Servicing Agreement. No recourse shall be had for the payment of any amount
owing in respect of this Agreement against the trustee or paying agent, or any
officer, member, director, employee, security holder or incorporator thereof
(each, an "Affiliated Person") of Party B or its successors or assigns for any
amounts payable under this Agreement. Upon application of the Trust Estate in
accordance with the Pooling and Servicing Agreement, Party A shall not be
entitled to take any further steps against Party B to recover any sums due but
still unpaid hereunder or thereunder, and all claims by Party A against Party B
hereunder and/or under the Pooling and Servicing Agreement shall be
extinguished.
(c) NON PETITION. Party A hereby agrees that it will not, prior to the
date which is one year and one day after all the Class A-2FL Certificates issued
by Party B have been paid in full, acquiesce, petition or otherwise invoke or
cause Party B to invoke the process of any court or governmental authority for
the purpose of commencing or sustaining a case against Party B under any federal
or state bankruptcy, insolvency or similar law or for the purpose of appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official for Party B or any substantial part of the property of Party B,
or for the purpose of ordering the winding up or liquidation of the affairs of
Party B. Nothing herein shall prevent Party A from participating in any such
proceeding once commenced.
(d) RATING AGENCY CONFIRMATION OF AMENDMENTS, ASSIGNMENTS AND
TRANSFERS. All amendments, transfers and assignments hereunder after the date
hereof shall require Party B to obtain prior written confirmations from S&P and
▇▇▇▇▇'▇ that such amendment, transfer or assignment, as the case may be, will
not result in the downgrade, withdrawal or other modification of their then
current ratings on the Certificates.
(e) ADDITIONAL COVENANT OF PARTY B. Party B covenants that it will
not, without the prior written consent of Party A, enter into any amendment,
modification or supplement to the Pooling and Servicing Agreement that would
adversely affect the rights of Party A hereunder in a material manner.
14
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
CITIBANK, N.A. CD 2005-CD1 COMMERCIAL MORTGAGE TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇ By: LaSalle Bank National Association,
------------------------------- not in its individual
Name: ▇▇▇▇▇ ▇▇▇▇ capacity, but solely as Trustee
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President