EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.,
Depositor
CAPMARK FINANCE INC.,
Master Servicer No. 1
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer No. 2
LNR PARTNERS, INC.,
Special Servicer
XXXXX FARGO BANK, N.A.,
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
June 1, 2006
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2006-LDP7
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms........................................................................
Section 1.02 Certain Calculations.................................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.........................................................
Section 2.02 Acceptance by Trustee................................................................
Section 2.03 Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers'
Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and
Breaches of Representations and Warranties.........................................
Section 2.04 Execution of Certificates; Issuance of Uncertificated Lower-Tier Interests...........
Section 2.05 Grantor Trust Designations...........................................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special Servicer to Act as Special
Servicer; Administration of the Mortgage Loans.....................................
Section 3.02 Collection of Mortgage Loan Payments.................................................
Section 3.03 Collection of Taxes, Assessments and Similar Items; Servicing Accounts...............
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier Distribution Accounts, the
Companion Distribution Account, the Interest Reserve Account, the Gain-on-Sale
Reserve Account, the Excess Interest Distribution Account and the Floating Rate
Account............................................................................
Section 3.05 Permitted Withdrawals from the Certificate Accounts, the Distribution Accounts, the
Companion Distribution Account, the Excess Interest Distribution and the Floating
Rate Account.......................................................................
Section 3.06 Investment of Funds in the Certificate Accounts and the REO Account..................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage........
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements............................
Section 3.09 Realization Upon Defaulted Mortgage Loans............................................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files......................................
Section 3.11 Servicing Compensation...............................................................
Section 3.12 Inspections; Collection of Financial Statements......................................
Section 3.13 [RESERVED]...........................................................................
Section 3.14 [RESERVED]...........................................................................
Section 3.15 Access to Certain Information........................................................
Section 3.16 Title to REO Property; REO Account...................................................
Section 3.17 Management of REO Property...........................................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..................................
Section 3.19 Additional Obligations of the Applicable Master Servicer and Special Servicer........
Section 3.20 Modifications, Waivers, Amendments and Consents......................................
Section 3.21 Transfer of Servicing Between Master Servicer and Special Servicer; Recordkeeping;
Asset Status Report................................................................
Section 3.22 Sub-Servicing Agreements.............................................................
Section 3.23 Representations, Warranties and Covenants of the Master Servicers....................
Section 3.24 Representations, Warranties and Covenants of the Special Servicer....................
Section 3.25 Interest Reserve Account.............................................................
Section 3.26 Excess Interest Distribution Account.................................................
Section 3.27 Directing Certificateholder Contact with Master Servicers............................
Section 3.28 Controlling Class Certificateholders and Directing Certificateholder; Certain Rights
and Powers of Directing Certificateholder..........................................
Section 3.29 Intercreditor Agreements.............................................................
Section 3.30 Companion Paying Agent...............................................................
Section 3.31 Companion Register...................................................................
Section 3.32 Swap Contract........................................................................
Section 3.33 Litigation Control...................................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions........................................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting Package (IRP)s; Grant of
Power of Attorney..................................................................
Section 4.03 P&I Advances.........................................................................
Section 4.04 Allocation of Collateral Support Deficit.............................................
Section 4.05 Appraisal Reductions.................................................................
Section 4.06 Certificate Deferred Interest........................................................
Section 4.07 Grantor Trust Reporting..............................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.....................................................................
Section 5.02 Registration of Transfer and Exchange of Certificates................................
Section 5.03 Book-Entry Certificates..............................................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates....................................
Section 5.05 Persons Deemed Owners................................................................
Section 5.06 Certificate Ownership Certification..................................................
Section 5.07 Appointment of Paying Agent..........................................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicers and the Special Servicer............
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the Master Servicers or the
Special Servicer...................................................................
Section 6.03 Limitation on Liability of the Depositor, the Master Servicers, the Special Servicer
and Others.........................................................................
Section 6.04 Master Servicers and Special Servicer Not to Resign..................................
Section 6.05 Rights of the Depositor in Respect of the Master Servicers and the Special Servicer..
Section 6.06 The Master Servicers and the Special Servicer as Certificate Owner...................
Section 6.07 The Directing Certificateholder......................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer Termination..................
Section 7.02 Trustee to Act; Appointment of Successor.............................................
Section 7.03 Notification to Certificateholders...................................................
Section 7.04 Waiver of Events of Default..........................................................
Section 7.05 Trustee as Maker of Advances.........................................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent...........................................
Section 8.02 Certain Matters Affecting the Trustee and the Paying Agent...........................
Section 8.03 Trustee and Paying Agent Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans.....................................................................
Section 8.04 Trustee or Paying Agent May Own Certificates.........................................
Section 8.05 Fees and Expenses of Trustee and Paying Agent; Indemnification of Trustee and Paying
Agent..............................................................................
Section 8.06 Eligibility Requirements for Trustee and the Paying Agent............................
Section 8.07 Resignation and Removal of the Trustee and Paying Agent..............................
Section 8.08 Successor Trustee or Paying Agent....................................................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent...................................
Section 8.10 Appointment of Co-Trustee or Separate Trustee........................................
Section 8.11 Appointment of Custodians............................................................
Section 8.12 Access to Certain Information........................................................
Section 8.13 Representations and Warranties of the Trustee........................................
Section 8.14 Representations and Warranties of the Paying Agent...................................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All Mortgage Loans.....................
Section 9.02 Additional Termination Requirements..................................................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.................................................................
Section 10.02 Use of Agents........................................................................
Section 10.03 Depositor, Master Servicers and Special Servicer to Cooperate with Paying Agent......
Section 10.04 Appointment of REMIC Administrators..................................................
ARTICLE XI
EXCHANGE ACT REPORTING AND
REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness................................................
Section 11.02 Succession; Subcontractors...........................................................
Section 11.03 Filing Obligations...................................................................
Section 11.04 Form 10-D Filings....................................................................
Section 11.05 Form 10-K Filings....................................................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.........................................................
Section 11.07 Form 8-K Filings.....................................................................
Section 11.08 Form 15 Filing.......................................................................
Section 11.09 Annual Compliance Statements.........................................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing Criteria...................
Section 11.11 Annual Independent Public Accountants' Servicing Report..............................
Section 11.12 Indemnification......................................................................
Section 11.13 Amendments...........................................................................
Section 11.14 Regulation AB Notices................................................................
Section 11.15 Certain Matters Relating to the Future Securitization of the Serviced A2 Notes.......
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment............................................................................
Section 12.02 Recordation of Agreement; Counterparts...............................................
Section 12.03 Limitation on Rights of Certificateholders...........................................
Section 12.04 Governing Law........................................................................
Section 12.05 Notices..............................................................................
Section 12.06 Severability of Provisions...........................................................
Section 12.07 Grant of a Security Interest.........................................................
Section 12.08 Successors and Assigns; Third Party Beneficiaries....................................
Section 12.09 Article and Section Headings.........................................................
Section 12.10 Notices to the Rating Agencies.......................................................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3A Certificate
Exhibit A-4 Form of Class A-3FL Certificate
Exhibit A-5 Form of Class A-3B Certificate
Exhibit A-6 Form of Class A-4 Certificate
Exhibit A-7 Form of Class A-SB Certificate
Exhibit A-8 Form of Class A-1A Certificate
Exhibit A-9 Form of Class X Certificate
Exhibit A-10 Form of Class A-M Certificate
Exhibit A-11 Form of Class A-J Certificate
Exhibit A-12 Form of Class B Certificate
Exhibit A-13 Form of Class C Certificate
Exhibit A-14 Form of Class D Certificate
Exhibit A-15 Form of Class E Certificate
Exhibit A-16 Form of Class F Certificate
Exhibit A-17 Form of Class G Certificate
Exhibit A-18 Form of Class H Certificate
Exhibit A-19 Form of Class J Certificate
Exhibit A-20 Form of Class K Certificate
Exhibit A-21 Form of Class L Certificate
Exhibit A-22 Form of Class M Certificate
Exhibit A-23 Form of Class N Certificate
Exhibit A-24 Form of Class P Certificate
Exhibit A-25 Form of Class Q Certificate
Exhibit A-26 Form of Class NR Certificate
Exhibit A-27 Form of Class S Certificate
Exhibit A-28 Form of Class R Certificate
Exhibit A-29 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [RESERVED]
Exhibit M [RESERVED]
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate for Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate during
Restricted Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Form of Certification to be Provided with Form 10-K
Exhibit R-1 Form of Certification to be Provided to Depositor by Paying
Agent
Exhibit R-2 Form of Certification to be Provided to Depositor by Each
Master Servicer
Exhibit R-3 Form of Certification to be Provided to Depositor by Special
Servicer
Exhibit S Initial Companion Holders
Exhibit T Form of Notice and Certification regarding Defeasance of
Mortgage Loan
Exhibit U Information Request from Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit V Trustee Certification/Exception Report
Exhibit W Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit X Additional Form 10-D Disclosure
Exhibit Y Additional Form 10-K Disclosure
Exhibit Z Form 8-K Disclosure Information
Exhibit AA Additional Disclosure Notification
Exhibit BB Servicing and Subservicing Agreements
Exhibit CC Swap Contract Related to the Class A-3FL Certificates
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Assumption Fees on Certain Mortgage Loans
Schedule 4 Class A-SB Planned Principal Balance Schedule
Schedule 5 Mortgage Loans with Earnouts, Holdbacks or Letters of Credit
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of June 1, 2006, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Capmark Finance Inc., as Master Servicer No. 1,
Wachovia Bank, National Association, as Master Servicer No. 2, LNR Partners,
Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee and LaSalle Bank
National Association, as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause an
election to be made to treat the Trust Fund (exclusive of the Class A-3FL
Regular Interest, the Swap Contract, the Floating Rate Account, the Excess
Interest, the Excess Interest Distribution Account and the proceeds thereof) for
federal income tax purposes as two separate real estate mortgage investment
conduits (the "Upper-Tier REMIC" and the "Lower-Tier REMIC" as described
herein).
The parties intend that the portions of the Trust Fund representing
(i) the Excess Interest, the Excess Interest Distribution Account and the
proceeds thereof and (ii) the Class A-3FL Regular Interest, the Swap Contract,
the Floating Rate Account and the proceeds thereof will be treated as a grantor
trust under subpart E of Part I of subchapter J of the Code and that the
beneficial interests therein will be represented by the Class S Certificates and
the Class A-3FL Certificates, respectively.
LOWER-TIER REMIC
The Class XX-0, Xxxxx XX-0X, Xxxxx XX-0, Class LA-3A, Class LA-3FL,
Class XX-0X, Xxxxx XX-0, Class LA-SB, Class LA-M, Class LA-J, Class LB, Class
LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class
LL, Class LM, Class LN, Class LP, Class LQ and Class LNR Uncertificated
Interests will evidence "regular interests" in the Lower-Tier REMIC created
hereunder. The sole Class of "residual interests" in the Lower-Tier REMIC will
be evidenced by the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Original
Lower-Tier
Class Designation Interest Rate Principal Amount
----------------- ------------- ----------------
Class LA-1 (1) $ 95,081,000
Class LA-2 (1) $ 255,782,000
Class LA-3A (1) $ 87,500,000
Class LA-3FL (1) $ 87,500,000
Class LA-3B (1) $ 94,109,000
Class LA-4 (1) $ 1,616,079,000
Class LA-SB (1) $ 170,204,000
Class LA-1A (1) $ 351,669,000
Class LA-M (1) $ 393,989,000
Class LA-J (1) $ 310,267,000
Class LB (1) $ 78,798,000
Class LC (1) $ 44,323,000
Class LD (1) $ 14,775,000
Class LE (1) $ 39,399,000
Class LF (1) $ 39,399,000
Class LG (1) $ 49,248,000
Class LH (1) $ 39,399,000
Class LJ (1) $ 44,324,000
Class LK (1) $ 14,775,000
Class LL (1) $ 14,774,000
Class LM (1) $ 19,700,000
Class LN (1) $ 4,925,000
Class LP (1) $ 14,774,000
Class LQ (1) $ 14,775,000
Class LNR (1) $ 44,324,158
Class LR None(2) None(2)
--------------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class A-3A, Class X-0X, Xxxxx X-0, Class
A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class NR and Class X Certificates and the Class A-3FL Regular Interest
will evidence "regular interests" in the Upper-Tier REMIC created hereunder. The
sole Class of "residual interests" in the Upper-Tier REMIC created hereunder
will be evidenced by the Class R Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
for each Class of Certificates and the Class A-3FL Regular Interest comprising
the interests in the Upper-Tier REMIC created hereunder:
Initial Original Certificate
Pass-Through Balance or Notional Ratings(1)
Rate Amount (Xxxxx'x/S&P/Fitch)
------------- --------------------- -------------------
Class A-1 Certificates(2) 5.8335%(3) $ 95,081,000 Aaa/AAA/AAA
Class A-2 Certificates(2) 5.8615%(3) $ 255,782,000 Aaa/AAA/AAA
Class A-3A Certificates(2) 5.8775%(4) $ 75,000,000 Aaa/AAA/AAA
Class A-3FL Regular Interest(2) 5.5100%(5) $ 100,000,000(6) Aaa/AAA/AAA(7)
Class A-3B Certificates(2) 5.8755%(4) $ 94,109,000 Aaa/AAA/AAA
Class A-4 Certificates(2) 5.8755%(4) $ 1,616,079,000 Aaa/AAA/AAA
Class A-SB Certificates(2) 5.8755%(4) $ 170,204,000 Aaa/AAA/AAA
Class A-1A Certificates(2) 5.8755%(4) $ 351,669,000 Aaa/AAA/AAA
Class A-M Certificates 5.8755%(4) $ 393,989,000 Aaa/AAA/AAA
Class A-J Certificates 5.8755%(4) $ 310,267,000 Aaa/AAA/AAA
Class B Certificates 5.8755%(4) $ 78,798,000 Aa2/AA/AA
Class C Certificates 5.8755%(4) $ 44,323,000 Aa3/AA-/AA-
Class D Certificates 5.8755%(4) $ 14,775,000 A1/A+/A+
Class E Certificates 5.8755%(4) $ 39,399,000 A2/A/A
Class F Certificates 5.8755%(4) $ 39,399,000 A3/A-/A-
Class G Certificates 5.8755%(4) $ 49,248,000 Baa1/BBB+/BBB+
Class H Certificates 5.8755%(4) $ 39,399,000 Baa2/BBB/BBB
Class J Certificates 5.8755%(4) $ 44,324,000 Baa3/BBB-/BBB-
Class K Certificates 5.7260%(8) $ 14,775,000 Ba1/BB+/BB+
Class L Certificates 5.7260%(8) $ 14,774,000 Ba2/BB/BB
Class M Certificates 5.7260%(8) $ 19,700,000 Ba3/BB-/BB-
Class N Certificates 5.7260%(8) $ 4,925,000 B1/*/*
Class P Certificates 5.7260%(8) $ 14,774,000 B2/*/*
Class Q Certificates 5.7260%(8) $ 14,775,000 B3/*/*
Class NR Certificates 5.7260%(8) $ 44,324,158 */*/*
Class R Certificates N/A(9) N/A(9) */*/*
Class X Certificates 0.0088%(10) $ 3,939,892,158(11) Aaa/AAA/AAA
--------------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-2, Class
A-3A, Class X-0X, Xxxxx X-0, Class A-SB and Class A-1A Certificates and
the Class A-3FL Regular Interest, the pool of Mortgage Loans will be
deemed to consist of two distinct Loan Groups, Loan Group 1 and Loan Group
2.
(3) The Pass-Through Rate for any Distribution Date for the Class A-1 and
Class A-2 Certificates will be a per annum rate equal to the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.042% and
0.014%, respectively.
(4) The Pass-Through Rate for any Distribution Date for the Class A-3A, Class
X-0X, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates will be the Weighted Average Net Mortgage Rate.
(5) The Class A-3FL Regular Interest will be uncertificated and will be
transferred to the Trust Fund on the Closing Date, and the Trust will
issue the Class A-3FL Certificates in exchange therefor. The Pass-Through
Rate applicable to the Class A-3FL Certificates on each Distribution Date
will be equal to the Class A-3FL Pass-Through Rate.
(6) The Certificate Balance of the Class A-3FL Certificates will be equal at
all times to the Certificate Balance of the Class A-3FL Regular Interest.
The Original Certificate Balance of the Class A-3FL Certificates will be
equal to $100,000,000.
(7) The Class A-3FL Regular Interest will not be rated. The ratings shown are
with respect to the Class A-3FL Certificates and only reflect receipt of
interest at the Class A-3FL Regular Interest Pass-Through Rate.
(8) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(9) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(10) The Pass-Through Rate for the Class X Certificates will be calculated in
accordance with the definition of "Class X Pass-Through Rate".
(11) The Class X Certificates will not have a Certificate Balance; rather, such
Class of Certificates will accrue interest as provided herein on the Class
X Notional Amount.
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$3,939,892,158.
Five (5) mortgage loans (or groups of mortgage loans), the One & Two
Prudential Plaza A2 Note, the JQH Hotel Portfolio Companion Loan, the PennCom
Plaza Companion Loan, the Xxxxxxx PLC Building-Xxxxxxxx Companion Loan and the
Xxxxx Crest Companion Loan (collectively, the "Companion Loans"), are not part
of the Trust Fund, but are secured by the same Mortgage that secures the related
Mortgage Loan (each, with the exception of the One & Two Prudential Plaza
Mortgage Loan, an "AB Mortgage Loan" and, collectively, the "AB Mortgage Loans")
that is part of the Trust Fund. As and to the extent provided herein, the
Companion Loans will be serviced and administered in accordance with this
Agreement. Amounts attributable to the Companion Loans will not be assets of the
Trust Fund, and (except to the extent that such amounts are payable or
reimbursable to any party to this Agreement) will be owned by the related
Companion Holders.
The One & Two Prudential Plaza Whole Loan consists of the One & Two
Prudential Plaza Mortgage Loan and the One & Two Prudential Plaza A2 Note. The
One & Two Prudential Plaza Mortgage Loan and the One & Two Prudential Plaza A2
Note are pari passu with each other. The One & Two Prudential Plaza Mortgage
Loan is part of the Trust Fund. The One & Two Prudential Plaza A2 Note is not
part of the Trust Fund. The One & Two Prudential Plaza Mortgage Loan and the One
& Two Prudential Plaza A2 Note will be serviced and administered in accordance
with this Agreement and the One & Two Prudential Plaza Intercreditor Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, the Special Servicer, the Trustee and the
Paying Agent agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"10-K Filing Deadline": As defined in Section 11.05.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Loan Pair, other than a Mortgage Loan or a Loan Pair that expressly requires the
Mortgagor to maintain insurance coverage for acts of terrorism, a default under
the related Mortgage Loan documents arising by reason of (i) any failure on the
part of the related Mortgagor to maintain with respect to the related Mortgaged
Property specific insurance coverage with respect to, or an all-risk casualty
insurance policy that does not specifically exclude, terrorist or similar acts,
and/or (ii) any failure on the part of the related Mortgagor to maintain with
respect to the related Mortgaged Property insurance coverage with respect to
terrorist or similar acts upon terms not materially less favorable than those in
place as of the Closing Date, in each case, as to which default the applicable
Master Servicer and the Special Servicer may forbear taking any enforcement
action, provided that the Special Servicer has determined based on inquiry
consistent with the Servicing Standards and after consultation with the
Directing Certificateholder, that either (a) such insurance is not available at
commercially reasonable rates and that such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located, or (b) such insurance is not available at any rate; provided, however,
the Directing Certificateholder, will not have more than 30 days to respond to
the Special Servicer's request for consultation; provided, further, that upon
the Special Servicer's determination, consistent with the Servicing Standards,
that exigent circumstances do not allow the Special Servicer to consult with the
Directing Certificateholder, the Special Servicer will not be required to do so.
The Special Servicer shall be entitled to rely on insurance consultants in
making determinations described above. The cost of such insurance consultants
shall be paid from the applicable Certificate Account as a Servicing Advance to
the extent the Mortgage Loan documents do not prohibit such amounts from being
collected from the related Mortgagor and otherwise as an expense of the Trust
Fund.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates (other than the Class A-3FL
Certificates) and the Class A-3FL Regular Interest, an amount equal to interest
for the related Interest Accrual Period at the Pass-Through Rate of such Class
of Certificates or Class A-3FL Regular Interest, as applicable, for such
Distribution Date, accrued on the related Certificate Balance (or with respect
to the Class X Certificates, the Notional Amount of such Class) outstanding
immediately prior to such Distribution Date (provided that for interest accrual
purposes any distributions in reduction of Certificate Balance or Notional
Amount or reductions in Certificate Balance or Notional Amount as a result of
allocations of Collateral Support Deficit on the Distribution Date occurring in
an Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period). Accrued Certificate Interest shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to each
Distribution Date and any Class of Certificates (other than the Class X, Class
A-3FL, Class S and the Residual Certificates), and the Class A-3FL Regular
Interest that had an increase to its Certificate Balance as a result of a
recovery of Nonrecoverable Advances, an amount equal to interest at the
Pass-Through Rate applicable to that Class on the amount of such increase to its
Certificate Balance accrued from the Distribution Date on which Collateral
Support Deficit was allocated to such Class as a result of the reimbursement of
Nonrecoverable Advances from the Trust to, but not including, the Distribution
Date on which the Certificate Balance was so increased.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Disclosure Notification": the form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as
Exhibit AA.
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Servicer": Each Affiliate of the applicable Master
Servicer, the Special Servicer or either Mortgage Loan Seller that services any
of the Mortgage Loans and each Person who is not an Affiliate of the applicable
Master Servicer, other than the Special Servicer, who Services 10% or more of
the Mortgage Loans by unpaid principal balance.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable Servicing Criteria": means with respect to the Trustee,
the Paying Agent, a Master Servicer, the Special Servicer or any Servicing
Function Participant, the Servicing Criteria applicable to it, as set forth on
Exhibit W attached hereto. For clarification purposes, multiple parties can have
responsibility for the same Applicable Servicing Criteria. With respect to a
Servicing Function Participant engaged by the Trustee, a Master Servicer or the
Special Servicer, the term "Applicable Servicing Criteria" may refer to a
portion of the Applicable Servicing Criteria applicable to such Master Servicer,
the Special Servicer or the Trustee, as the case may be.
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee and the Paying Agent by either (i)
an Opinion of Counsel delivered to them, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state or local tax
laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan and any related Companion Loan as to which an Appraisal Reduction
Event has occurred, will be an amount calculated by the Special Servicer, as of
the first Determination Date following the date on which the Special Servicer
receives or performs the related Appraisal, equal to the excess of (a) the
Stated Principal Balance of such Mortgage Loan and any related Companion Loan
over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of the
related Mortgaged Property as determined (1) by one or more Appraisals with
respect to any Mortgage Loan (together with any other Mortgage Loan
cross-collateralized with such Mortgage Loan) with an outstanding principal
balance equal to or in excess of $2,000,000 (the costs of which shall be paid by
the applicable Master Servicer as an Advance) or (2) by an internal valuation
performed by the Special Servicer with respect to any Mortgage Loan (together
with any other Mortgage Loan cross-collateralized with such Mortgage Loan) with
an outstanding principal balance less than $2,000,000 minus, with respect to any
Appraisals, such downward adjustments as the Special Servicer may make (without
implying any obligation to do so) based upon its review of the Appraisal and any
other information it deems relevant and (B) all escrows, letters of credit and
reserves in respect of such Mortgage Loan as of the date of calculation over
(ii) the sum of, as of the Due Date occurring in the month of the date of
determination, (A) to the extent not previously advanced by the applicable
Master Servicer or the Trustee, all unpaid interest on such Mortgage Loan at a
per annum rate equal to its Mortgage Rate (and any accrued and unpaid interest
on any related Companion Loan), (B) all unreimbursed Advances out of collections
on such Mortgage Loan and interest thereon at the Reimbursement Rate in respect
of such Mortgage Loan and (C) all currently due and unpaid real estate taxes,
assessments, insurance premiums, ground rents, unpaid Special Servicing Fees and
all other amounts due and unpaid with respect to such Mortgage Loan (which
taxes, premiums, ground rents and other amounts have not been the subject of an
Advance by the applicable Master Servicer or the Trustee, as applicable);
provided, however, without limiting the Special Servicer's obligation to order
and obtain such Appraisal, if the Special Servicer has not obtained the
Appraisal or valuation, as applicable, referred to above within 60 days of the
Appraisal Reduction Event (or with respect to the Appraisal Reduction Events set
forth in clauses (i) and (vi) of the definition of Appraisal Reduction Event,
within 120 days or 90 days after the initial delinquency for the related
Appraisal Reduction Event), the amount of the Appraisal Reduction shall be
deemed to be an amount equal to 25% of the current Stated Principal Balance of
the related Mortgage Loan (or the AB Mortgage Loan and its related Companion
Loan in the case of an AB Mortgage Loan or the One & Two Prudential Plaza Whole
Loan in the case of the One & Two Prudential Plaza Mortgage Loan), as
applicable, until such time as such appraisal or valuation referred to above is
received and the Appraisal Reduction is calculated. Within 60 days after the
Appraisal Reduction Event, the Special Servicer shall order and receive an
Appraisal (the cost of which shall be paid by the Applicable Master Servicer as
a Servicing Advance); provided, however, that with respect to an Appraisal
Reduction Event as set forth in clause (i) of the definition of Appraisal
Reduction Event, the Special Servicer shall order and receive such Appraisal
within the 120-day period set forth in such clause (i), which Appraisal shall be
delivered by the Special Servicer to the applicable Master Servicer, the
Directing Certificateholder, the Paying Agent and the Trustee.
With respect to each Mortgage Loan and any related Companion Loan as
to which an Appraisal Reduction has occurred (unless such Mortgage Loan has
become a Corrected Mortgage Loan (for such purposes taking into account any
amendment or modification of such Mortgage Loan or any related Companion Loan),
the Special Servicer shall, within thirty (30) days of each anniversary of the
related Appraisal Reduction Event, order an Appraisal (which may be an update of
a prior Appraisal), the cost of which shall be paid by the applicable Master
Servicer as a Servicing Advance or conduct an internal valuation, as applicable
and, promptly following receipt of any such Appraisal or the completion of any
such internal valuation, shall deliver a copy thereof to the applicable Master
Servicer, the Directing Certificateholder, the Paying Agent and the Trustee.
Based upon such Appraisal or internal valuation of the Special Servicer shall
redetermine and report to the Directing Certificateholder, the applicable Master
Servicer, the Paying Agent and the Trustee the amount of the Appraisal Reduction
with respect to such Mortgage Loan and Companion Loan, as applicable, and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan and Companion Loan, as applicable. The
Directing Certificateholder shall have ten (10) Business Days to review each
calculation of an Appraisal Reduction; provided, however, that if the Directing
Certificateholder fails to approve or disapprove any calculation of the
Appraisal Reduction within ten (10) Business Days of receipt of the initial
Appraisal Reduction, such consent shall be deemed given. Notwithstanding the
foregoing, the Special Servicer will not be required to obtain an Appraisal or
conduct an internal valuation, as applicable, with respect to a Mortgage Loan
and any related Companion Loan which is the subject of an Appraisal Reduction
Event to the extent the Special Servicer has obtained an Appraisal or conducted
such a valuation (in accordance with requirements of this Agreement), as
applicable, with respect to the related Mortgaged Property within the
twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan and any related Companion Loan; provided that the Special
Servicer is not aware of any material change to the related Mortgaged Property
having occurred and affecting the validity of such appraisal or valuation, as
applicable.
Any Mortgage Loan and any related Companion Loan, previously subject
to an Appraisal Reduction which Mortgage Loan and any related Companion Loan,
has become a Corrected Mortgage Loan (for such purposes taking into account any
amendment or modification of such Mortgage Loan and any related Companion Loan),
and with respect to which no other Appraisal Reduction Event has occurred and is
continuing, will no longer be subject to an Appraisal Reduction. Any Appraisal
Reduction for the One & Two Prudential Plaza Whole Loan shall be allocated in
accordance with the One & Two Prudential Plaza Intercreditor Agreement to the
One & Two Prudential Plaza Mortgage Loan and the One & Two Prudential Plaza A2
Note, pro rata and pari passu according to their respective Stated Principal
Balances.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date on which such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan and
any related Companion Loan, the earliest of (i) 120 days after an uncured
delinquency (without regard to the application of any grace period) occurs in
respect of such Mortgage Loan and any related Companion Loan, (ii) the date on
which a reduction in the amount of Monthly Payments on such Mortgage Loan and
any related Companion Loan, or a change in any other material economic term of
such Mortgage Loan and any related Companion Loan, (other than an extension of
the Maturity Date), becomes effective as a result of a modification of such
Mortgage Loan by the Special Servicer, (iii) the date on which a receiver has
been appointed, (iv) 60 days after a Mortgagor declares bankruptcy, (v) 60 days
after the date on which an involuntary petition of bankruptcy is filed with
respect to a Mortgagor if not dismissed within such time, (vi) 90 days after an
uncured delinquency occurs in respect of a Balloon Payment with respect to such
Mortgage Loan and any related Companion Loan, except where a refinancing is
anticipated within 120 days after the Maturity Date of the Mortgage Loan or the
Mortgage Loan and any related Companion Loan, in which case 120 days after such
uncured delinquency, and (vii) immediately after such Mortgage Loan and any
related Companion Loan, becomes an REO Loan; provided, however, that an
Appraisal Reduction Event shall not occur at any time when the aggregate
Certificate Balances of all Classes of Certificates (other than the Class A
Certificates) have been reduced to zero. The Special Servicer shall notify the
applicable Master Servicer, or the applicable Master Servicer shall notify the
Special Servicer, as applicable, promptly upon the occurrence of any of the
foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Excess Interest at the rate specified in the related
Mortgage Note and the Mortgagor is required to apply excess monthly cash flow
generated by the related Mortgaged Property to the repayment of the outstanding
principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans on deposit
in each Certificate Account (exclusive of any Net Investment Earnings contained
therein and exclusive of any amount on deposit in or credited to any portion of
each Certificate Account that is held for the benefit of the Companion Holders)
and the Lower-Tier Distribution Account (without regard to any payments made to
or received from the Swap Counterparty) as of the close of business on the
related P&I Advance Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due on a
Due Date following the end of the related Due Period, including interest
related to payments received after, but due on or before, the Cut-off
Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the related
Due Date for the related Mortgage Loan), Liquidation Proceeds or Insurance
and Condemnation Proceeds, in each case, received subsequent to the
related Determination Date (or, with respect to voluntary Principal
Prepayments for each Mortgage Loan with a Due Date occurring after the
related Determination Date, the related Due Date);
(iii) all amounts payable or reimbursable to any Person from each
Certificate Account pursuant to clauses (ii) through (xvii), inclusive,
and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from the
Lower-Tier Distribution Account pursuant to clauses (iv) through (ix),
inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in each Certificate Account, the
Lower-Tier Distribution Account and, without duplication, the REO Account
in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in (1)
each January or (2) any December in a year immediately preceding a year
which is not a leap year, an amount equal to one day of interest on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the
month preceding the month in which such Distribution Date occurs at the
related Mortgage Rate to the extent such amounts are Withheld Amounts;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to each Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicers or the Trustee, as applicable, for such Distribution Date pursuant to
Section 4.03 or 7.05 (net of the related Trustee Fee with respect to the
Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March (or February
if the Final Distribution Date occurs in such month), the Withheld Amounts
remitted to the Lower-Tier Distribution Account pursuant to Section 3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in the Certificate Accounts
pursuant to Section 3.06, for purposes of calculating the Available Distribution
Amount, the amounts so invested shall be deemed to remain on deposit in such
account.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class X-0, Xxxxx X-0, Class A-3A,
Class X-0X, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J Certificate and
the Class A-3FL Regular Interest, a fraction (a) whose numerator is the greater
of (x) zero and (y) the amount by which (i) the Pass-Through Rate on such Class
of Certificates or the Class A-3FL Regular Interest, as applicable, exceeds (ii)
the discount rate used in accordance with the related Mortgage Loan documents in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount by which (i) the Mortgage
Rate on such Mortgage Loan exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. Each Master Servicer shall provide to
the Paying Agent the discount rate references above for purposes of calculating
the Base Interest Fraction.
"Bid Allocation": With respect to the applicable Master Servicer and
each Sub-Servicer therefor and the proceeds of any bid pursuant to Section
7.01(c), the amount of such proceeds (net of any expenses incurred in connection
with such bid and the transfer of servicing), multiplied by a fraction equal to
(a) the Servicing Fee Amount for the applicable Master Servicer or such
Sub-Servicer therefor, as the case may be, as of such date of determination,
over (b) the aggregate of the Servicing Fee Amounts for the applicable Master
Servicer and all Sub-Servicers therefor as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Charlotte, North Carolina,
Chicago, Illinois, Columbia, Maryland, or the city and state in which the
Corporate Trust Office of the Trustee, or the principal place of business of any
Master Servicer, the Paying Agent, or the Special Servicer is located, are
authorized or obligated by law or executive order to remain closed.
"Capmark": Capmark Finance Inc., a California corporation, or its
successor in interest.
"Capmark Servicing Standard": As defined in Section 3.01(a).
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP7, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by each Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Capmark Finance Inc., as Master Servicer No. 1, on behalf of Xxxxx
Fargo Bank, N.A., as Trustee, in trust for the registered holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7, Certificate Account" and Wachovia Bank, National
Association, as Master Servicer No. 2, on behalf of Xxxxx Fargo Bank, N.A., as
Trustee, in trust for the registered holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7, Certificate Account," respectively. Any such account or accounts
shall be an Eligible Account. Subject to the related Intercreditor Agreement and
taking into account that each Companion Loan is subordinate to the related AB
Mortgage Loan to the extent set forth in the related Intercreditor Agreement,
the subaccount described in the second paragraph of Section 3.04(b) that is part
of a Certificate Account shall be for the benefit of the related Companion
Holder, to the extent funds on deposit in such subaccount are attributed to such
Companion Loan and shall not be an asset of the Trust Fund or the Upper-Tier
REMIC or Lower-Tier REMIC formed hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S Certificates and the Class X
Certificates) and the Class A-3FL Regular Interest, (i) on or prior to the first
Distribution Date, an amount equal to the Original Certificate Balance of such
Class as specified in the Preliminary Statement hereto, and (ii) as of any date
of determination after the first Distribution Date, the Certificate Balance of
such Class of Certificates or the Class A-3FL Regular Interest on the
Distribution Date immediately prior to such date of determination (determined as
adjusted pursuant to Section 1.02(iii)). The Certificate Balance (including the
Original Certificate Balance) of the Class A-3FL Certificates shall be equal at
all times to the Certificate Balance of the Class A-3FL Regular Interest.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class A-3FL Certificates)
and the Class A-3FL Regular Interest, the amount of Mortgage Deferred Interest
allocated to such Class of Certificates or the Class A-3FL Regular Interest, as
applicable, pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the applicable Master
Servicer, the Special Servicer, the Trustee, the Paying Agent, the Depositor or
any Affiliate thereof shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver has been obtained, if such consent, approval or
waiver sought from such party would in any way increase the compensation of the
Depositor, the applicable Master Servicer, the Special Servicer or the Trustee
or limit the obligations of the Depositor, the applicable Master Servicer, the
Special Servicer or the Trustee, as applicable, hereunder; provided, however, so
long as there is no Event of Default with respect to the applicable Master
Servicer or the Special Servicer, the applicable Master Servicer, the Special
Servicer or such Affiliate of either shall be entitled to exercise such Voting
Rights with respect to any issue which could reasonably be believed to adversely
affect such party's compensation or increase its obligations or liabilities
hereunder; and provided, further, however, that such restrictions shall not
apply to the exercise of the Special Servicer's rights (or the applicable Master
Servicer's rights, if any) or the rights of any of their Affiliates as a member
of the Controlling Class. The Trustee and the Paying Agent shall each be
entitled to request and rely upon a certificate of the applicable Master
Servicer, the Special Servicer or the Depositor in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer": As defined in Section 11.09.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-1A, Class A-2, Class
A-3A, Class A-3FL, Class X-0X, Xxxxx X-0 Class A-SB Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.042%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-8 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.014%.
"Class A-3A Certificate": A Certificate designated as "Class A-3A"
on the face thereof, in the form of Exhibit A-3 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-3B Certificate": A Certificate designated as "Class A-3B"
on the face thereof, in the form of Exhibit A-5 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3B Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-3FL Available Funds": With respect to any Distribution
Date, the sum of (i) the total amount of all principal and/or interest
distributions on or in respect of the Class A-3FL Regular Interest with respect
to such Distribution Date and (ii) the amounts, if any, received from the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date, less
(iii) all amounts (exclusive of any Yield Maintenance Charges allocated in
respect of the Class A-3FL Regular Interest) required to be paid to the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date.
"Class A-3FL Certificate": A Certificate designated as "Class A-3FL"
on the face thereof, in the form of Exhibit A-4 hereto, and evidencing an
undivided beneficial in the portion of the Grantor Trust consisting of the Class
A-3FL Regular Interest, the Floating Rate Account, the Swap Contract and the
proceeds thereof.
"Class A-3FL Distribution Conversion": With respect to any
Distribution Date (i) during the continuation of a Swap Default while the
Trustee (or the Paying Agent on its behalf) is pursuing remedies under the Swap
Contract pursuant to Section 3.32 or (ii) following the termination of the Swap
Contract, the conversion of distributions to the Class A-3FL Certificates from
distributions based, in part, on interest payments from the Swap Counterparty
under the Swap Contract to distributions based solely on distributions in
respect of the Class A-3FL Regular Interest, as specified in Section 4.01(k).
"Class A-3FL Fixed Swap Payment": With respect to any Distribution
Date, the amount required to be paid to the Swap Counterparty by the Trust under
the Swap Contract.
"Class A-3FL Floating Swap Payment": With respect to any
Distribution Date, the amount required to be paid to the Trust by the Swap
Counterparty under the Swap Contract.
"Class A-3FL Interest Distribution Amount": With respect to any
Distribution Date, the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-3FL Pass-Through Rate applicable for such
Distribution Date on the Certificate Balance outstanding immediately prior to
such Distribution Date of such Class and (b) to the extent not previously paid,
amounts of interest distributable on the Class A-3FL Certificates for all
previous Distribution Dates.
"Class A-3FL Net Swap Payment": With respect to the related Interest
Accrual Period, the excess, if any of (i) the Class A-3FL Fixed Swap Payment,
over (ii) the Class A-3FL Floating Swap Payment.
"Class A-3FL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-3FL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.16%, and with respect to any
Distribution Date on which a Class A-3FL Distribution Conversion has occurred
and is continuing, a per annum rate equal to the Class A-3FL Regular Interest
Pass-Through Rate.
"Class A-3FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-3FL Regular Interest on such
Distribution Date.
"Class A-3FL Regular Interest": The uncertificated interest
corresponding to the Class A-3FL Certificates and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3FL Regular Interest Distribution Amount": With respect to
any Distribution Date, the aggregate distributions on the Class A-3FL Regular
Interest pursuant to this Agreement, including, but not limited to, any payments
of interest, principal, Yield Maintenance Charges and/or reimbursements.
"Class A-3FL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to 5.795%.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-6 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-SB Certificate": A Certificate designated as "Class A-SB"
on the face thereof, in the form of Exhibit A-7 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-SB Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the planned principal amount for such Distribution Date
specified in Schedule 4 hereto relating to the Class A-SB Certificates.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.7260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.7260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3A Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3B Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3FL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-29 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.]
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.7260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-23 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.7260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-26 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.7260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-24 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.7260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Q Certificate": A Certificate designated as "Class Q" on the
face thereof, in the form of Exhibit A-25 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Q Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.7260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-28 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-29 hereto, and evidencing an undivided
beneficial interest in the portion of the Grantor Trust consisting of the Excess
Interest, the Excess Interest Distribution Account and the proceeds thereof.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates (other than the Class A-3FL Certificates) or the Class
A-3FL Regular Interest, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class of Certificates or
the Class A-3FL Regular Interest, as applicable, for the immediately preceding
Distribution Date and (ii) any outstanding Class Unpaid Interest Shortfall
payable to such Class of Certificates or the Class A-3FL Regular Interest, as
applicable, on such preceding Distribution Date over (b) the aggregate amount in
respect of interest actually distributed to such Class of Certificates or the
Class A-3FL Regular Interest, as applicable, on such immediately preceding
Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class
of Certificates and the Class A-3FL Regular Interest as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
Class X Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all the Components.
"Class X Pass-Through Rate": With respect to any Distribution Date,
the weighted average of the Class X Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class X Strip Rate": (A) With respect to any Class of the
Components for any Distribution Date, a rate per annum equal to (i) the Weighted
Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": June 29, 2006.
"Closing Date Deposit Amount": $1,538,557.43, representing the
aggregate amount of interest that would have accrued at the related Mortgage
Rates during the Due Period ending in July 2006 for those Mortgage Loans
originated in June 2006 that do not have their first Monthly Payment due until
August 2006.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Paying Agent,
the Master Servicers and the Directing Certificateholder.
"CMSA Advance Recovery Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally as is reasonably
acceptable to the applicable Master Servicer and the Special Servicer.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Paying Agent.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Paying Agent, the Trustee and the
Master Servicers.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicers or the Special Servicer, as
applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation Report" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicers or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicers or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) CMSA Servicer Watch List, (2) CMSA Delinquent Loan
Status Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (6) CMSA Historical Liquidation Report, (7) CMSA Operating Statement
Analysis Report, (8) CMSA NOI Adjustment Worksheet, (9) CMSA Loan Level
Reserve/LOC Report and (10) CMSA Reconciliation of Funds Report). In addition,
the CMSA Investor Reporting Package shall include the CMSA Advance Recovery
Report and the CMSA Realized Loss Report. The CMSA IRP shall be substantially in
the form of, and containing the information called for in, the downloadable
forms of the "CMSA IRP" available as of the Closing Date on the CMSA website, or
such other form for the presentation of such information and containing such
additional information or reports as may from time to time be approved by the
CMSA for commercial mortgage backed securities transaction generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA IRP" available as of the Closing Date on the
CMSA website, as is reasonably acceptable to the Master Servicers, the Special
Servicer, the Trustee and the Paying Agent. For the purposes of the production
of the CMSA Comparative Financial Status Report by any Master Servicer or the
Special Servicer of any such report that is required to state information for
any period prior to the Cut off Date, any Master Servicer or the Special
Servicer, as the case may be, may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
Mortgage Loan Sellers or by the related Mortgagor or (x) in the case of such a
report produced by any Master Servicer, by the Special Servicer (if other than
any Master Servicer or an Affiliate thereof) and (y) in the case of such a
report produced by the Special Servicer, by any Master Servicer (if other than
the Special Servicer or an Affiliate thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicers,
the Paying Agent and the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicers and the Paying Agent.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the applicable Master Servicer
or the Special Servicer, as the case may be.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Operating Statement
Analysis Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the applicable Master Servicer or the Special Servicer,
as the case may be.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the applicable Master Servicer or the Special Servicer,
as the case may be.
"CMSA Realized Loss Report": The report in the "Servicer Realized
Loss Form" format substantially in the form of and containing the information
called for therein for the Mortgage Loans, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Realized Loss Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the applicable Master Servicer or
the Special Servicer, as applicable.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Paying Agent.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the applicable Master Servicer or the Special
Servicer, as the case may be.
"CMSA Servicer Watch List and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Servicer Watch List" format
substantially in the form of and containing the information called for therein
for the Mortgage Loans, or such other form (including other portfolio review
guidelines) for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Servicer Watch List"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the applicable Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to each Companion
Loan, the separate account or accounts created and maintained by the applicable
Companion Paying Agents pursuant to Section 3.04(b) and held on behalf of the
Companion Holders, which shall be entitled "Capmark Finance Inc., as Companion
Paying Agent for the Companion Holders of the Companion Loans, relating to the
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP7" or "Wachovia Bank, National
Association, as Companion Paying Agent for the Companion Holders of the
Companion Loans, relating to the X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7", as applicable. The Companion Distribution Account shall not be an
asset of the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC, but
instead shall be held by the Companion Paying Agent on behalf of the Companion
Holders. Any such account shall be an Eligible Account. Notwithstanding the
foregoing, if the related Master Servicer and the related Companion Paying Agent
are the same entity, the Companion Distribution Account maintained by such
Companion Paying Agent may be the subaccount referenced in the second paragraph
of Section 3.04(b).
"Companion Holder": Each of the holders of the Companion Loans.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Loan Securities": The One & Two Prudential Plaza
Companion Loan Securities and the San Xxxxxxxx Companion Loan Securities.
"Companion Paying Agent": The applicable Master Servicer in its role
as Companion Paying Agent appointed pursuant to Section 3.30.
"Companion Register": The register maintained by each Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": An amount as of any Distribution
Date equal to the lesser of (i) the aggregate amount of Prepayment Interest
Shortfalls incurred in connection with voluntary principal prepayments received
in respect of the Mortgage Loans (other than the Specially Serviced Mortgage
Loans) serviced by the applicable Master Servicer and (ii) the aggregate of (A)
that portion of the applicable Master Servicer's Servicing Fees for such
Distribution Date that is, in the case of each and every Mortgage Loan and REO
Loan for which such Servicing Fees are being paid for such Due Period,
calculated at 0.005% (0.5 basis points) per annum, and (B) all Prepayment
Interest Excesses with respect to the applicable Master Servicer received in
respect of the Mortgage Loans for the related Distribution Date and (C) to the
extent earned on Principal Prepayments, Net Investment Earnings received by the
applicable Master Servicer during such Due Period with respect to the Mortgage
Loans and related Companion Loan related to such Prepayment Interest Shortfalls.
However, if a Prepayment Interest Shortfall occurs as a result of the applicable
Master Servicer's allowing the related Mortgagor to deviate from the terms of
the related Mortgage Loan documents regarding Principal Prepayments (other than
(X) subsequent to a default under the related Mortgage Loan documents (with the
consent of the Special Servicer), (Y) pursuant to applicable law or a court
order, or (Z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (1) all Servicing Fees with respect to the applicable Master
Servicer for such Due Period on the Mortgage Loan subject to such prepayment,
(2) all Prepayment Interest Excesses with respect to the applicable Master
Servicer and (3) to the extent earned solely on Principal Prepayments, Net
Investment Earnings received by the applicable Master Servicer during such Due
Period with respect to the Mortgage Loan subject to such Principal Prepayment.
In no event will the rights of the Certificateholders to offset the aggregate
Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0X, Xxxxxxxxx
XX-0, Component XA-3A, Component XA-3FL, Component XX-0X, Xxxxxxxxx XX-0,
Component XA-SB, Component XA-M, Component XA-J, Component XB, Component XC,
Component XD, Component XE, Component XF, Component XG, Component XH, Component
XJ, Component XK, Component XL, Component XM, Component XN, Component XP,
Component XQ and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1 Uncertificated Interest as of any
date of determination.
"Component XA-1A": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A Uncertificated Interest as of any
date of determination.
"Component XA-2": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2 Uncertificated Interest as of any
date of determination.
"Component XA-3A": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3A Uncertificated Interest as of any
date of determination.
"Component XA-3B": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3B-1 Uncertificated Interest as of
any date of determination.
"Component XA-3FL": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3FL Uncertificated Interest as of
any date of determination.
"Component XA-4": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-4 Uncertificated Interest as of any
date of determination.
"Component XA-J": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-J Uncertificated Interest as of any
date of determination.
"Component XA-M": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-M Uncertificated Interest as of any
date of determination.
"Component XA-SB": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-SB Uncertificated Interest as of any
date of determination.
"Component XB": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LB Uncertificated Interest as of any date of
determination.
"Component XC": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LC Uncertificated Interest as of any date of
determination.
"Component XD": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LD Uncertificated Interest as of any date of
determination.
"Component XE": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LE Uncertificated Interest as of any date of
determination.
"Component XF": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LF Uncertificated Interest as of any date of
determination.
"Component XG": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LG Uncertificated Interest as of any date of determination.
"Component XH": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LH Uncertificated Interest as of any date of determination.
"Component XJ": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LJ Uncertificated Interest as of any date of
determination.
"Component XK": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LK Uncertificated Interest as of any date of
determination.
"Component XL": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LL Uncertificated Interest as of any date of
determination.
"Component XM": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LM Uncertificated Interest as of any date of
determination.
"Component XN": One of the 25 components of the Class X Certificates
then having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LN Uncertificated Interest as of any date of
determination.
"Component XNR": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XP": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LP Uncertificated Interest as of any date of
determination.
"Component XQ": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LQ Uncertificated Interest as of any date of
determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS), X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Series 2006-LDP7 (telecopy number
(000) 000-0000).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the applicable Master Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the most
recent twelve month period covered by an annual operating statement for the
related Mortgaged Properties preceding the repurchase or substitution shall not
be less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the most recent
twelve month period covered by an annual operating statement for the related
Mortgaged Properties preceding the repurchase or substitution, and (b) 1.25x,
(ii) the weighted average LTV Ratio for all remaining related Crossed Loans
determined at the time of repurchase or substitution based upon an Appraisal
obtained by the Special Servicer at the expense of the related Mortgage Loan
Seller shall not be greater than the lesser of (a) the weighted average LTV
Ratio for all such related Crossed Loans, including the affected Crossed Loan,
determined at the time of repurchase or substitution based upon an Appraisal
obtained by the Special Servicer at the expense of the related Mortgage Loan
Seller and (b) 75%, (iii) the Mortgage Loan Seller, at its expense, shall have
furnished the Trustee and the Paying Agent with an Opinion of Counsel that any
modification relating to the repurchase or substitution of a Crossed Loan shall
not cause an Adverse REMIC Event, (iv) the related Mortgage Loan Seller causes
the affected Crossed Loan to become not cross-collateralized and cross-defaulted
with the remaining related Crossed Loans prior to such repurchase or
substitution or otherwise forbears from exercising enforcement rights against
the Primary Collateral of any Crossed Loan remaining in the Trust Fund and (v)
the Directing Certificateholder shall have consented to the repurchase or
substitution of the affected Crossed Loan, which consent shall not be
unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in June 2006, or, with respect to those Mortgage Loans
that were originated in May 2006 and have their first Due Date in July 2006,
June 1, 2006, or, with respect to those Mortgage Loans that were originated in
June 2006 and have their first Due Date after June 2006, the origination date.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the applicable Master Servicer or Special
Servicer has, by written notice to the related Mortgagor, accelerated the
maturity of the indebtedness evidenced by the related Mortgage Note. For the
avoidance of doubt, a defaulted Companion Loan does not constitute a "Defaulted
Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(l).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder (or a representative thereof identified to the Master
Servicers, the Special Servicer, the Trustee and the Paying Agent) selected by
more than 50% of the Controlling Class Certificateholders, by Certificate
Balance, as certified by the Certificate Registrar from time to time; provided,
however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected or (iii) upon receipt of a notice from a
majority of the Controlling Class Certificateholders, by Certificate Balance,
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class will be the Directing Certificateholder which will
initially be LNR Securities Holdings, LLC. Notwithstanding the foregoing, with
respect to the One & Two Prudential Plaza Whole Loan, any references to the
Directing Certificateholder in this Agreement shall be deemed to be references
to the holder of the One & Two Prudential Plaza Mortgage Loan, which shall be
entitled to take all actions and receive all notices in connection with the One
& Two Prudential Plaza Whole Loan upon consultation with the holder of the One &
Two Prudential Plaza A2 Note pursuant to the procedures set forth in the One &
Two Prudential Plaza Intercreditor Agreement. In the event that the Directing
Certificateholder and the holder of the One & Two Prudential Plaza A2 Note
disagree, the One & Two Prudential Plaza Intercreditor Agreement provides that
the Directing Certificateholder's decision will be binding upon the holder of
the One & Two Prudential Plaza A2 Note.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or on behalf of a Companion Holder or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10% of the construction
of such building or improvement was completed before default became imminent),
other than through an Independent Contractor; provided, however, that an REO
Property shall not be considered to be Directly Operated solely because the
Trustee (or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance or makes decisions as to repairs or capital expenditures with respect
to such REO Property or takes other actions consistent with Treasury Regulations
Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Paying Agent based upon an
Opinion of Counsel as provided to the Paying Agent (at no expense to the Paying
Agent) that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates (other than the Class
A-3FL Certificates) and the Class A-3FL Regular Interest, the Accrued
Certificate Interest in respect of such Class of Regular Certificates or the
Class A-3FL Regular Interest, as applicable, for such Distribution Date, reduced
(to not less than zero) by any allocations to such Class of Certificates (other
than in the case of the Class X Certificates) or the Class A-3FL Regular
Interest, as applicable, of (i) the product of (a) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (b) a fraction,
expressed as a decimal, the numerator of which is the Accrued Certificate
Interest in respect of such Class of Certificates or the Class A-3FL Regular
Interest, as applicable, for such Distribution Date, and the denominator of
which is the aggregate Accrued Certificate Interest in respect of all the
Classes of Regular Certificates (other than the Class A-3FL Certificates and the
Class X Certificates) and the Class A-3FL Regular Interest for such Distribution
Date, and (ii) any Certificate Deferred Interest for such Distribution Date
allocated to such Class of Certificates or the Class A-3FL Regular Interest, as
applicable, pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Floating Rate Account and the
Excess Interest Distribution Account, all of which may be subaccounts of a
single Eligible Account.
"Distribution Date": The 15th day of each month, or, if such 15th
day is not a Business Day, on the next succeeding Business Day, beginning in
July 2006.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date (or the Due Date that would have been the Due Date if the Mortgage
Loan had a Due Date in June or July 2006) for such Mortgage Loan or Companion
Loan occurring in the month preceding the month in which such Distribution Date
occurs and ending on and including the Due Date for such Mortgage Loan or
Companion Loan occurring in the month in which such Distribution Date occurs (or
the date that would have been the Due Date if the Mortgage Loan had a Due Date
in July 2006). Notwithstanding the foregoing, in the event that the last day of
a Due Period (or applicable grace period) is not a Business Day, any Monthly
Payments received with respect to the Mortgage Loans or Companion Loan relating
to such Due Period on the Business Day immediately following such day shall be
deemed to have been received during such Due Period and not during any other Due
Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Paying Agent or Trustee), (A)(x) the long-term unsecured
debt obligations of which are rated at least "Aa3" by Moody's, if the deposits
are to be held in such account for more than 30 days and (y) the short term debt
obligations of which have a short-term rating of not less than "P-1" from
Moody's, if the deposits are to be held in such account for 30 days or less,
(B)(x) the long-term unsecured debt obligations of which are rated at least "A+"
by S&P, if the deposits are to be held in such account for more than 30 days and
(y) the short-term debt obligations of which have a short-term rating of not
less than "A-1" by S&P, if the deposits are to be held in such account for 30
days or less, (C)(x) the long-term unsecured debt obligations of which are rated
at least "AA-" by Fitch and (y) the short-term debt obligations of which have a
short-term rating of not less than "F1" by Fitch, if the deposits are to be held
in such account for 30 days or less and (D) such other account or accounts with
respect to which each of the Rating Agencies shall have confirmed in writing
that the then current rating assigned to any of the Certificates or any
Companion Loan Securities will not be qualified, downgraded or withdrawn by
reason thereof or (ii) a segregated trust account or accounts maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company that, in either case, has corporate trust powers,
acting in its fiduciary capacity, provided that any state chartered depository
institution or trust company is subject to regulation regarding fiduciary funds
substantially similar to 12 C.F.R. ss. 9.10(b). Eligible Accounts may bear
interest. No Eligible Account shall be evidenced by a certificate of deposit,
passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-05 or a review conducted in accordance with the All Appropriate
Inquiries final rule issued by the United States Environmental Protection Agency
on November 1, 2005 (40 C.F.R. Part 312), or any successor to either.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class K, Class L, Class M, Class
N, Class P, Class Q or Class NR Certificate; provided that any such Certificate:
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer of such Certificate, either (i) it is
rated in one of the four highest generic ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would permit the transfer of such
Certificate to a Plan.
"Escrow Payment": Any payment received by any Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Paying Agent pursuant to Section
3.04(c), which shall be entitled "LaSalle Bank National Association, as Paying
Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7, Excess Interest Distribution Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Excess Interest
Distribution Account shall not be an asset of either the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations of the Commission thereunder.
"Eurohypo": Eurohypo AG, New York Branch, a German banking
corporation, or its successor in interest.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan (and, if
applicable, any defaulted Companion Loan) or REO Property (other than a Mortgage
Loan or REO Property, as the case may be, that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan
Purchase Agreement, the Controlling Class Option Holder, the applicable
Companion Holder or the Special Servicer pursuant to Section 3.18(b), any
mezzanine lender pursuant to Section 3.18(e) or the applicable Master Servicer,
Special Servicer, the Holders of the Controlling Class, or the Holders of the
Class LR Certificates pursuant to Section 9.01) that there has been a recovery
of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue
and other payments or recoveries that, in the Special Servicer's judgment, which
judgment was exercised without regard to any obligation of the Special Servicer
to make payments from its own funds pursuant to Section 3.07(b), will ultimately
be recoverable. The Directing Certificateholder shall have ten (10) Business
Days to review and approve each such recovery determination by the Special
Servicer; provided, however, that if the Directing Certificateholder fails to
approve or disapprove any recovery determination within ten (10) Business Days
of receipt of the initial recovery determination, such approval shall be deemed
given.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Paying Agent, the Master Servicers, the Directing
Certificateholder and the Special Servicer, and specific ratings of Fitch herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Floating Rate Account": The trust account or accounts created and
maintained as a separate account or accounts (or as a subaccount of the
Distribution Account) by the Paying Agent pursuant to Section 3.04(b), which
shall be entitled "LaSalle Bank National Association, as Paying Agent, in trust
for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass Through Certificates, Series 2006-LDP7 Class
A-3FL Certificates, Floating Rate Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Floating Rate Account
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or
Companion Loan, as applicable, the excess of (i) Liquidation Proceeds of the
Mortgage Loan or Companion Loan or related REO Property net of any related
Liquidation Expenses, Unliquidated Advances, unreimbursed Advances, Liquidation
Fees, unreimbursed interest on Advances, unpaid Servicing Fees, and unpaid
Special Servicing Fees and additional Trust Fund expenses over (ii) the Purchase
Price for such Mortgage Loan or Companion Loan, as applicable, on the date on
which such Liquidation Proceeds were received. For the avoidance of doubt,
Gain-on-Sale Proceeds allocable to a Companion Loan shall not be assets of the
Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Paying
Agent, pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7, Gain-on-Sale Reserve Account." Any such account
shall be an Eligible Account or a subaccount of an Eligible Account.
"General Servicing Standard": As defined in Section 3.01(a).
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account, beneficial ownership of which is
represented by the Class S Certificates and (ii) the Class A-3FL Regular
Interest, the Swap Contract, the Floating Rate Account and the proceeds thereof,
beneficial ownership of which is represented by the Class A-3FL Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Group A Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Servicing Group A, together with any
other Mortgage Loan that is substituted in replacement thereof pursuant to or as
contemplated by the related Mortgage Loan Purchase Agreement.
"Group B Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Servicing Group B, together with any
other Mortgage Loan that is substituted in replacement thereof pursuant to or as
contemplated by the related Mortgage Loan Purchase Agreement.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Hyatt--Huntington Beach Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 7.
"Independent": When used with respect to any accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any specified
Person, any such Person who (i) is in fact independent of the Trustee, the
Paying Agent, the Depositor, each Master Servicer, the Special Servicer, the
Directing Certificateholder, any Companion Holder, and all Affiliates thereof,
(ii) does not have any material direct financial interest in or any material
indirect financial interest in any of the Trustee, the Paying Agent, the
Depositor, any Master Servicer, the Special Servicer, the Directing
Certificateholder or any Affiliate thereof and (iii) is not connected with the
Trustee, the Paying Agent, the Depositor, any Master Servicer, the Special
Servicer, the Directing Certificateholder or any Affiliate thereof as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail to
be Independent of the Trustee, the Paying Agent, the Depositor, any Master
Servicer, the Special Servicer, the Directing Certificateholder or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
Class of securities issued by the Trustee, the Paying Agent, the Depositor, any
Master Servicer, the Special Servicer, the Directing Certificateholder or any
Affiliate thereof, as the case may be, provided such beneficial ownership
constitutes less than 1% of the total assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Paying Agent, the applicable Master Servicer, any Companion Holder or the Trust,
delivered to the Trustee, the Paying Agent, any Companion Holder and the
applicable Master Servicer), so long as the Trust does not receive or derive any
income from such Person and provided that the relationship between such Person
and the Trust is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5) (except that any Master Servicer or the Special Servicer
shall not be considered to be an Independent Contractor under the definition in
this clause (i) unless an Opinion of Counsel has been delivered to the Trustee
to that effect) or (ii) any other Person (including the Master Servicers and the
Special Servicer) upon receipt by the Trustee, the Paying Agent and the
applicable Master Servicer of an Opinion of Counsel, which shall be at no
expense to the Trustee, the Paying Agent, the Master Servicers or the Trust
Fund, to the effect that the taking of any action in respect of any REO Property
by such Person, subject to any conditions therein specified, that is otherwise
herein contemplated to be taken by an Independent Contractor will not cause such
REO Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Initial Purchaser": X.X. Xxxxxx Securities Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with any Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement. The Initial
Sub-Servicers are set forth on Exhibit BB hereto.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of any AB Mortgage Loan, to the extent
any portion of such proceeds are received by the Paying Agent in connection with
such AB Mortgage Loan, pursuant to the allocations set forth in the related
Intercreditor Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreements": Each of the One & Two Prudential Plaza
Intercreditor Agreement, the JQH Hotel Portfolio Intercreditor Agreement, the
PennCom Plaza Intercreditor Agreement, the Xxxxxxx PLC Building--Xxxxxxxx
Intercreditor Agreement and the Xxxxx Crest Intercreditor Agreement.
"Interest Accrual Period": With respect to any Class of Regular
Certificates (other than the Class A-3FL Certificates if the Class A-3FL
Distribution Conversion is not in effect), the Class A-3FL Regular Interest or
the Uncertificated Lower-Tier Interests and any Distribution Date, the period
beginning on the first day of the calendar month preceding the calendar month in
which the related Distribution Date occurs and ending on the last day of the
calendar month preceding the calendar month in which such Distribution Date
occurs, calculated assuming that each month has 30 days and each year has 360
days. With respect to the Class A-3FL Certificates and any Distribution Date for
which the Class A-3FL Distribution Conversion is not in effect, the Interest
Accrual Period will be the period from and including the Distribution Date in
the month preceding the month in which the related Distribution Date occurs (or
in the case of the first Distribution Date, the Closing Date) to, but excluding
the related Distribution Date, calculated assuming that each month has the
actual number of days in such Interest Accrual Period and each year has 360
days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates (other than the Class A-3FL Certificates) and the Class A-3FL
Regular Interest for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates or the Class A-3FL Regular
Interest, as applicable, for such Distribution Date and any Accrued Interest
From Recoveries for such Class, to the extent not previously paid for all prior
Distribution Dates.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.25 in the name of "LaSalle Bank National Association, as Paying Agent,
in trust for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
0000-XXX0, Xxxxxxxx Xxxxxxx Account," into which the amounts set forth in
Section 3.25 shall be deposited directly and which must be an Eligible Account
or subaccount of an Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, each Master Servicer, the
Special Servicer, any Independent Contractor engaged by the Special Servicer,
any Holder of a Certificate, each Companion Holder (but only with respect to the
related AB Mortgage Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"JPMorgan": JPMorgan Chase Bank, National Association, a banking
association organized under the laws of the United States, or its successor in
interest.
"JQH Hotel Portfolio AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 5.
"JQH Hotel Portfolio Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the JQH Hotel Portfolio AB Mortgage Loan.
"JQH Hotel Portfolio Intercreditor Agreement": That certain
Agreement Among Noteholders, dated as of [________], between Nomura Credit &
Capital, Inc., as Note A Holder, and Nomura Credit & Capital, Inc., as Note B
Holder. The JQH Hotel Portfolio Intercreditor Agreement relates to the JQH Hotel
Portfolio AB Mortgage Loan.
"Xxxxx Crest AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 105.
"Xxxxx Crest Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Xxxxx Crest AB Mortgage Loan.
"Xxxxx Crest Intercreditor Agreement": That certain Intercreditor
Agreement Among Note Holders, dated as of April 27, 2006, between JPMorgan, as
Note A Holder, and CBA-Mezzanine Capital Finance, LLC, as Note B Holder. The
Xxxxx Crest Intercreditor Agreement relates to the Xxxxx Crest AB Mortgage Loan.
"LaSalle": LaSalle Bank National Association, a national banking
association organized under the laws of the United States, or its successor in
interest
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"LIBOR": With respect to the Class A-3FL Certificates and each
Interest Accrual Period for which the Class A-3FL Distribution Conversion is not
in effect, the rate for deposits in U.S. Dollars, for a period equal to one
month, which appears on the Dow Xxxxx Market Service (formerly Telerate) Page
3750 as of 11:00 a.m., London time, on the related LIBOR Determination Date. If
such rate does not appear on Dow Xxxxx Market Service Page 3750, the rate for
that Interest Accrual Period shall be determined on the basis of the rates at
which deposits in U.S. Dollars are offered by any four major reference banks in
the London interbank market selected by the Paying Agent to provide such bank's
offered quotation of such rates at approximately 11:00 a.m., London time, on the
related LIBOR Determination Date to prime banks in the London interbank market
for a period of one month, commencing on the first day of such Interest Accrual
Period and in an amount that is representative for a single such transaction in
the relevant market at the relevant time. The Paying Agent shall request the
principal London office of any four major reference banks in the London
interbank market selected by the Paying Agent to provide a quotation of such
rates, as offered by each such bank. If at least two such quotations are
provided, the rate for that Interest Accrual Period shall be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested, the
rate for that Interest Accrual Period shall be the arithmetic mean of the rates
quoted by major banks in New York City selected by the Paying Agent, at
approximately 11:00 a.m., New York City time, on the LIBOR Determination Date
with respect to such Mortgage Loan Accrual Period for loans in U.S. Dollars to
leading European banks for a period equal to one month, commencing on the LIBOR
Determination Date with respect to such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Paying Agent shall determine LIBOR for each Interest
Accrual Period and the determination of LIBOR by Paying Agent shall be binding
absent manifest error.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England and New York, New York.
"LIBOR Determination Date": (i) With respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the applicable Master Servicer, the Holders of the Controlling Class
or the Holders of the Class LR Certificates pursuant to Section 9.01 or acquired
by the Sole Certificateholder in exchange for its Certificates pursuant to
Section 9.01; or (vi) such Mortgage Loan is purchased by (a) the applicable
Companion Holder pursuant to or as contemplated by Section 3.18(d) or (b) a
mezzanine lender pursuant to the related mezzanine intercreditor agreement. With
respect to any REO Property (and the related REO Loan), any of the following
events: (i) a Final Recovery Determination is made with respect to such REO
Property; (ii) such REO Property is purchased by the applicable Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates pursuant to Section 9.01; or (iii) such REO Property is
purchased by (a) the applicable Companion Holder pursuant to or as contemplated
by Section 3.18(d) or (b) a mezzanine lender pursuant to the related mezzanine
intercreditor agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property as to which the
Special Servicer receives (i) a full or discounted payoff (or an unscheduled
partial payment to the extent such prepayment is required by the Special
Servicer as a condition to a workout) with respect thereto from the related
Mortgagor or (ii) any Liquidation Proceeds or Insurance and Condemnation
Proceeds with respect to the related Mortgage Loan or REO Property (in any case,
other than amounts for which a Workout Fee has been paid, or will be payable),
equal to the product of the Liquidation Fee Rate and the proceeds of such full
or discounted payoff or other partial payment or the Liquidation Proceeds or
Insurance and Condemnation Proceeds (net of the related costs and expenses
associated with the related liquidation) related to such liquidated Specially
Serviced Mortgage Loan or REO Property, as the case may be; provided, however,
that no Liquidation Fee shall be payable with respect to any event described in
(1) clause (iii)(A) of the definition of "Liquidation Proceeds," (2) clause (iv)
of the definition of "Liquidation Proceeds" if such repurchase occurs within the
time parameters (including any applicable extension period) set forth in this
Agreement and in the related Mortgage Loan Purchase Agreement or (3) clause (v)
and clause (vi) of the definition of "Liquidation Proceeds," as long as, with
respect to a purchase pursuant to clause (vi)(B) of the definition of the
Liquidation Proceeds, the repurchase occurs within the time period provided in
the underlying intercreditor agreement or, if no such time period is specified,
60 days, or (4) with respect to the One & Two Prudential Plaza A2 Note, no such
fee shall be payable in connection with a purchase or repurchase of a One & Two
Prudential Plaza A2 Note under an Other Pooling and Servicing Agreement (for the
avoidance of doubt, a Liquidation Fee payable under this Agreement, in
accordance herewith, may be payable on the entire One & Two Prudential Plaza
Whole Loan).
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to any
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan through a trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage; (ii)
the realization upon any deficiency judgment obtained against a Mortgagor; (iii)
(A) the purchase of a Defaulted Mortgage Loan by the Majority Controlling Class
Certificateholder, the Special Servicer or any Master Servicer pursuant to
Section 3.18(a) or (B) any other sale thereof pursuant to Section 3.18(c) or
Section 3.18(e); (iv) the repurchase of a Mortgage Loan by the applicable
Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement; (v) the purchase of a Mortgage Loan or REO Property by the Holders of
the Controlling Class, the Special Servicer, any Master Servicer or the Holders
of the Class LR Certificates pursuant to Section 9.01 or; (vi) the purchase of a
Mortgage Loan or an REO Property by (A) the Companion Holder pursuant to Section
3.18(d) or (B) any other mezzanine lender of the related Mortgage Loan or REO
Loan.
"Litigation Control": As defined in Section 3.33(a).
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 1
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 2 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 2 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 1 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 2 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 1 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 2 Principal Distribution Amount).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2, Class A-3A, Class A-3B, Class
A-4 and Class A-SB Certificates and the Class A-3FL Regular Interest, exceeds
(2) the aggregate amount distributed in respect of principal on the Class X-0,
Xxxxx X-0, Class A-3A, Class A-3B, Class A-4 and Class A-SB Certificates and the
Class A-3FL Regular Interest on the prior Distribution Date. There will be no
Loan Group 1 Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 2
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 1 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 1 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 2 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 1 Principal Distribution Amount).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan. As used in this Agreement, the term "Loan Pair" shall include the
One & Two Prudential Plaza Whole Loan.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Paying Agent, in trust for the registered Holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 0000-XXX0, Xxxxx-Xxxx Distribution Account."
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising a portion
of the Trust Fund, the assets of which consist of the Mortgage Loans (exclusive
of Excess Interest), any REO Property with respect thereto (or an allocable
portion thereof, in the case of the AB Mortgage Loans or the One & Two
Prudential Plaza Mortgage Loan), such amounts related thereto as shall from time
to time be held in the Certificate Account (other than with respect to the
Companion Loans), the REO Account, if any, the Interest Reserve Account, the
Gain-on-Sale Reserve Account and the Lower-Tier Distribution Account, and all
other property included in the Trust Fund that is not in the Upper-Tier REMIC or
the Grantor Trust.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Master Servicer": With respect to (a) the Group A Mortgage Loans
and any related Companion Loans and any related REO Properties, and any matters
relating to the foregoing, Master Servicer No. 1, and (b) the Group B Mortgage
Loans and any related Companion Loans and any related REO Properties, and any
matters relating to the foregoing, Master Servicer No. 2.
"Master Servicer No. 1": Capmark Finance Inc., and its successors in
interest and assigns, or any successor Master Servicer appointed as allowed
herein.
"Master Servicer No. 2": Wachovia Bank, National Association, and
its successors in interest and assigns, or any successor Master Servicer
appointed as allowed herein.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"MERS": Mortgage Electronic Registration System, Inc.
"Mezz Cap AB Mortgage Loan": The Xxxxx Crest AB Mortgage Loan.
"Mezz Cap AB Mortgage Loan Intercreditor Agreement": The
Intercreditor Agreement related to the Mezz Cap AB Mortgage Loan.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest (other than
Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon
Payment, which is payable (as the terms of the applicable Mortgage Loan or
Companion Loan may be changed or modified in connection with a bankruptcy or
similar proceedings involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to pursuant to
the terms hereof) by a Mortgagor from time to time under the related Mortgage
Note and applicable law, without regard to any acceleration of principal of such
Mortgage Loan or Companion Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master Servicers and the Special Servicer, and
specific ratings of Moody's herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan and Companion Loan,
the mortgage, deed of trust or other instrument securing a Mortgage Note and
creating a lien on the fee and/or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or accompanied by,
all prior and intervening endorsements, assignments or allonges showing a
complete chain of endorsement or assignment from the originator of the
Mortgage Loan to the most recent endorsee, and further endorsed (at the
direction of the Depositor given pursuant to the applicable Mortgage Loan
Purchase Agreement), on its face or by allonge attached thereto, without
recourse, representation or warranty, express or implied to the order of
the Trustee in the following form: "Pay to the order of Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7" or in blank; provided that the
requirements of this clause (i) will be satisfied by delivery of a signed
lost note affidavit and indemnity properly assigned or endorsed to the
Trustee as described above, with a copy of the Mortgage Note attached to
it;
(ii) the original Mortgage (or a certified or other copy thereof
from the applicable recording office) and originals (or certified or other
copies from the applicable recording office) of any intervening
assignments thereof showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent mortgagee of record, in
each case with evidence of recording indicated thereon (except for
recording information not yet available if the Mortgage or an assignment
thereof has not been returned from the applicable recording office);
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), executed by the most recent assignee of record thereof
prior to the Trustee, or if none, by the originator to "Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7" and, in the case of the One & Two
Prudential Plaza Whole Loan or a Loan Pair, in its capacity as "lead
lender" under the related Intercreditor Agreement on behalf of the related
Companion Holder, or in blank, provided that, if the related Mortgage has
been recorded in the name of Mortgage Electronic Registration Systems,
Inc. ("MERS") or its designee, no assignment of Mortgage in favor of the
Trustee will be required to be recorded or delivered and instead, the
applicable Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement shall take all actions as are necessary to cause the
Trustee to be shown as, and shall provide the related Master Servicer and
the Special Servicer with reasonable evidence of, any such transfer, and
the Trustee shall take all actions necessary to confirm that it is shown
as, the owner of the related Mortgage on the records of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals or
copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent
assignee of record, in each case with evidence of recording thereon
(except for recording information not yet available if the Assignment of
Leases or an assignment thereof has not been returned from the applicable
recording office);
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage and to the extent not
already assigned pursuant to preceding clause (iii)), in recordable form
(except for recording information not yet available if the instrument
being assigned has not been returned from the applicable recording
office), executed by the applicable assignee of record to "Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7" and, in the case of the One & Two
Prudential Plaza Whole Loan or a Loan Pair, in its capacity as "lead
lender" under the related Intercreditor Agreement on behalf of the related
Companion Holder, or in blank, provided that if the related Mortgage has
been recorded in the name of MERS or its designee, no assignment of
Assignment of Leases in favor of the Trustee will be required to be
recorded or delivered and instead, the applicable Mortgage Loan Seller
pursuant to the applicable Mortgage Loan Purchase Agreement shall take all
actions as are necessary to cause the Trustee to be shown as, and shall
provide the related Master Servicer and the Special Servicer with
reasonable evidence of, any such transfer, and the Trustee shall take all
actions necessary to confirm that it is shown as, the owner of the related
Assignment of Leases on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals or copies
of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the applicable
Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in complete form,
executed by the applicable Mortgage Loan Seller to "Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7" and, in the case of the One & Two
Prudential Plaza Whole Loan or a Loan Pair, in its capacity as "lead
lender" under the related Intercreditor Agreement on behalf of the related
Companion Holder; provided, if the related Security Agreement has been
recorded in the name of MERS or its designee, no assignment of such
Security Agreement in favor of the Trustee will be required to be prepared
or delivered and instead, the applicable Mortgage Loan Seller pursuant to
the applicable Mortgage Loan Purchase Agreement shall take all actions as
are necessary to cause the Trustee, on behalf of the Certificateholders,
to be shown as (and the Trustee shall take all necessary actions to
confirm that it is shown as and shall provide the related Master Servicer
and the Special Servicer with reasonable evidence that it is) the owner of
the related assignment of Security Agreement on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
security agreements maintained by MERS;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with evidence
of recording thereon, where appropriate, in those instances where the
terms or provisions of the Mortgage, Mortgage Note or any related security
document have been consolidated or modified or the Mortgage Loan has been
assumed;
(ix) the original lender's title insurance policy or a copy thereof,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgagor's fee or leasehold interest in
the Mortgaged Property, or if the policy has not yet been issued, an
original or copy of a "marked-up" written commitment (marked as binding
and in all cases countersigned by the title insurer or its authorized
agent) or the pro forma or specimen title insurance policy (accepted or
approved in writing by the title insurer or its authorized agent) or an
agreement to provide the same pursuant to lender's escrow trust
instructions executed by an authorized representative of the title
insurance company, provided the actual policy is issued within eighteen
(18) months from the Closing Date, in connection with the related Mortgage
Loan;
(x) the original or copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan and any intervening assignments;
(xi) all UCC Financing Statements, assignments and continuation
statements or copies thereof, as filed or recorded, or in form that is
complete and suitable for filing or recording, as appropriate, or other
evidence of filing or recording sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in and to
the personalty of the Mortgagor at the Mortgaged Property (in each case
with evidence of filing or recording thereon, with the exception of filing
or recording information not yet available because the UCC Financing
Statement, assignment or continuation statement, as the case may be, has
not yet been returned from the applicable filing or recording office), and
to transfer such UCC Financing Statements to the Trustee, provided, if the
related Mortgage Loan has been recorded in the name of MERS or its
designee, no UCC Financing Statement in favor of the Trustee will be
required to be recorded or delivered and instead, the applicable Mortgage
Loan Seller pursuant to the applicable Mortgage Loan Purchase Agreement
shall take all actions as are necessary to cause the Trustee, on behalf of
the Certificateholders, to be shown as, and shall provide the related
Master Servicer and the Special Servicer with reasonable evidence of, any
such transfer, and the Trustee shall take all actions necessary to confirm
that it is shown as, the secured party on the related UCC Financing
Statements on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was not
signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional Debt, a
co-lender agreement, a subordination agreement or other intercreditor
agreement, pursuant to which such Additional Debt will be subordinated to
such Mortgage Loan as set forth in such intercreditor agreement;
(xiv) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground lease,
the related ground lease or a certified copy thereof and any related
ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage Loan
and, within sixty (60) days of the Closing Date or such earlier date as
required by the issuer of the letter of credit, a copy of the appropriate
transfer or assignment documents (which may be in the form of an
amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement, together
with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any franchise agreements and comfort letters related
thereto;
(xxi) a copy of any lock-box or cash management agreement(s);
(xxii) a list related to such Mortgage Loan indicating the related
Mortgage Loan documents included in the related Mortgage File (the
"Mortgage Loan Checklist"); and
(xxiii) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of each
Mortgage Note relating to such Companion Loan(s), rather than the
original;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
otherwise described above shall be construed to instead refer to a photocopy of
such Mortgage Note) and (d) the execution and/or recordation of any assignment
of Mortgage, any separate assignment of Assignment of Leases and any assignment
of any UCC Financing Statement in the name of the Trustee shall not be construed
to limit the beneficial interest of the related Companion Holder(s) in such
instrument and the benefits intended to be provided to them by such instrument,
it being acknowledged that (i) the Trustee shall hold such record title for the
benefit of the Trust as the holder of the related Mortgage Loan and the related
Companion Holder(s) collectively and (ii) any efforts undertaken by the Trustee,
any Master Servicer, or the Special Servicer on its behalf to enforce or obtain
the benefits of such instrument shall be construed to be so undertaken by
Trustee, the applicable Master Servicer or the Special Servicer for the benefit
of the Trust as the holder of the applicable Mortgage Loan and the related
Companion Holder(s) collectively.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number (as specified in Annex A-1 to the
Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, county, state and zip
code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining term
to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due (i) with respect to each
Mortgage Loan (other than Mortgage Loans on which only interest is due
prior to a balloon payment), on the first Due Date following the Cut-off
Date on which principal is due on such Mortgage Loan and (ii) with respect
to Mortgage Loans on which only interest is due prior to a balloon
payment, on the first Due Date following the Cut off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or an
Actual/360 Mortgage Loan;
(xiii) the Anticipated Repayment Date, if applicable;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage Loan
is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage Loan
Seller;
(xviii) whether such Mortgage Loan has a principal/guarantor;
(xix) whether such Mortgage Loan is secured by a letter of credit;
(xx) amount of any reserve or escrowed funds that were deposited at
origination and any ongoing periodic deposit requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box agreement is
in place;
(xxiii) the general property type of the related Mortgaged Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the applicable Servicing Group to which the Mortgage Loan
belongs;
(xxvi) the applicable Loan Group to which the Mortgage Loan belongs;
(xxvii) the number of units, pads or square feet with respect to
each Mortgaged Property; and
(xxviii) final maturity date;
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan, or its successor in
interest (2) Capmark, or its successors in interest, (3) LaSalle, or its
successor in interest, (4) Eurohypo, or its successors in interest and (5) NCCI,
or its successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; or (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"NCCI": Nomura Credit & Capital, Inc., a Delaware corporation, or
its successor in interest.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the applicable Master Servicer in
its Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to each Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such period
on funds relating to the Trust Fund held in such account, exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to each Certificate Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the
applicable Master Servicer or the Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor; provided,
further, that if any Mortgage Loan does not accrue interest on the basis of a
360-day year consisting of twelve 30-day months, then, solely for purposes of
calculating Pass-Through Rates, the Net Mortgage Rate of such Mortgage Loan for
any one-month period preceding a related Due Date will be the annualized rate at
which interest would have to accrue in respect of such Mortgage Loan on the
basis of a 360-day year consisting of twelve 30-day months in order to produce
the aggregate amount of interest actually accrued (exclusive of Default Interest
or Excess Interest) in respect of such Mortgage Loan during such one-month
period at the related Net Mortgage Rate; provided, further, that, with respect
to each Interest Reserve Loan, the Net Mortgage Rate for the one month period
(A) preceding the Due Dates that occur in January and February in any year which
is not a leap year or preceding the Due Date that occurs in February in any year
which is a leap year (unless the related Distribution Date is the final
Distribution Date), will be the per annum rate stated in the related Mortgage
Note less the related Administrative Cost Rate, and (B) preceding the Due Date
in March (or February if the final Distribution Date occurs in that month) will
be determined inclusive of the one day of interest retained for the immediately
preceding February or January, if applicable). With respect to any REO Loan, the
Net Mortgage Rate shall be calculated as described above, determined as if the
predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q, Class NR, Class S, Class R or Class LR
Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly (other than through a corporation that is a U.S.
Person) by a Non-U.S. Person or (B) if such Person is a U.S. Person with respect
to whom income from a Residual Certificate is attributable to a foreign
permanent establishment of fixed base, within the meaning of an applicable
income treaty, of such Person or any other U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided, that a Workout-Delayed Reimbursement
Amount shall constitute a Nonrecoverable Advance only when the Person making
such determination in accordance with the procedures specified in the definition
of Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as
applicable, and taking into account factors such as all other outstanding
Advances, either (a) has determined in its reasonable judgment that such
Workout-Delayed Reimbursement Amount would not ultimately be recoverable
(including interest on such Advance) from Late Collections, Insurance Proceeds
or Liquidation Proceeds, or any other recovery on or in respect of the related
Mortgage Loan or REO Loan, or (b) has determined in accordance with the
Servicing Standards or such other applicable standard that such Workout-Delayed
Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts
and Nonrecoverable Advances, would not ultimately be recovered from aggregate
principal collections in respect of the pool of the Mortgage Loans or REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the applicable Master Servicer or the Trustee, as
applicable, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon at the Reimbursement Rate, from Late Collections or any
other recovery on or in respect of such Mortgage Loan or REO Loan; provided,
however, that the Special Servicer may, at its option, in consultation with the
Directing Certificateholder, make a determination in accordance with the
Servicing Standards, that any P&I Advance previously made or proposed to be made
is a Nonrecoverable P&I Advance and shall deliver to the applicable Master
Servicer or the Trustee (and with respect to the One & Two Prudential Plaza
Mortgage Loan, to any Other Servicer) notice of such determination. Any such
determination shall be conclusive and binding on the applicable Master Servicer
and the Trustee, provided, however, the Special Servicer shall have no right to
reverse any decision of the applicable Master Servicer that any P&I Advance is
or would be nonrecoverable, and in the absence of a determination by the Special
Servicer that such P&I Advance is a Nonrecoverable P&I Advance, such decision
shall remain with the applicable Master Servicer or Trustee, as applicable. In
making such recoverability determination, the applicable Master Servicer,
Special Servicer or Trustee, as applicable, will be entitled (a) to consider
(among other things) (i) the obligations of the Mortgagor under the terms of the
related Mortgage Loan as it may have been modified and (ii) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
Servicing Standards in the case of the applicable Master Servicer and the
Special Servicer or its good faith business judgment in the case of the Trustee)
regarding the possibility and effects of future adverse change with respect to
such Mortgaged Properties, (b) to estimate and consider (among other things)
future expenses (consistent with the Servicing Standards in the case of the
applicable Master Servicer and the Special Servicer or in its good faith
business judgment in the case of the Trustee) among other things and the timing
of recoveries and (c) to give due regard to the existence of any Nonrecoverable
Advances which, at the time of such consideration, the recovery of which are
being deferred or delayed by either Master Servicer, in light of the fact that
related recoveries on or in respect of such Mortgage Loan are a source of
recovery not only for the Advance under consideration but also a potential
source of recovery for such delayed or deferred Advance. In addition, any
Person, in considering whether a P&I Advance is a Nonrecoverable Advance, will
be entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout Delayed Reimbursement Amount with respect to
other Mortgage Loans which, at the time of such consideration, the reimbursement
of which is being deferred or delayed by the applicable Master Servicer or the
Trustee because there is insufficient principal available for such
reimbursement, in light of the fact that proceeds on the related Mortgage Loan
are a source of reimbursement not only for the P&I Advance under consideration,
but also as a potential source of reimbursement of such Nonrecoverable Advance
or Workout-Delayed Reimbursement Amounts which are or may be being deferred or
delayed. In addition, any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing
Standards in the case of the applicable Master Servicer, or in its good faith
business judgment in the case of the Trustee, may obtain, promptly upon request,
from the Special Servicer any reasonably required analysis, Appraisals or market
value estimates or other information in the Special Servicer's possession for
making a recoverability determination. Absent bad faith, the applicable Master
Servicer's, Special Servicer's or the Trustee's determination as to the
recoverability of any P&I Advance shall be conclusive and binding on the
Certificateholders. The determination by the applicable Master Servicer or the
Special Servicer or the Trustee, as applicable, that the applicable Master
Servicer or the Trustee, as the case may be, has made a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, or any updated or changed recoverability
determination, shall be evidenced by an Officer's Certificate delivered by
either the Special Servicer or the applicable Master Servicer to the other and
to the Trustee, the Paying Agent, the Directing Certificateholder (and in the
case of the One & Two Prudential Plaza Mortgage Loan, any Other Servicer), the
Depositor, or by the Trustee to the Depositor, the applicable Master Servicer,
the Special Servicer, the Paying Agent and the Directing Certificateholder (and
in the case of the One & Two Prudential Plaza Mortgage Loan, any Other
Servicer). The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the applicable Master Servicer, the
Special Servicer or the Trustee, as applicable, forming the basis of such
determination (which shall be accompanied by, to the extent available, income
and expense statements, rent rolls, occupancy status, property inspections and
any other information used by the applicable Master Servicer, the Special
Servicer or the Trustee, as applicable, to make such determination and shall
include any existing Appraisal of the related Mortgage Loan or Mortgaged
Property). The Trustee shall be entitled to conclusively rely on the applicable
Master Servicer's or Special Servicer's determination that a P&I Advance is or
would be nonrecoverable, and the applicable Master Servicer shall be entitled to
conclusively rely on the Special Servicer's determination that a P&I Advance is
or would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan,
such recoverability determination shall take into account the
cross-collateralization of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable judgment of the applicable Master Servicer, the Special
Servicer or the Trustee, as the case may be, will not be ultimately recoverable,
together with any accrued and unpaid interest thereon, at the Reimbursement
Rate, from Late Collections or any other recovery on or in respect of such
Mortgage Loan or REO Property. In making such recoverability determination, such
Person will be entitled to consider (among other things) only the obligations of
the Mortgagor under the terms of the related Mortgage Loan as it may have been
modified, to consider (among other things) the related Mortgaged Properties in
their "as is" or then current conditions and occupancies, as modified by such
party's assumptions (consistent with the Servicing Standards in the case of the
applicable Master Servicer or the Special Servicer or in its good faith business
judgment in the case of the Trustee) regarding the possibility and effects of
future adverse change with respect to such Mortgaged Properties, to estimate and
consider (consistent with the Servicing Standards in the case of the applicable
Master Servicer or the Special Servicer or in its good faith business judgment
in the case of the Trustee) (among other things) future expenses and to estimate
and consider (among other things) the timing of recoveries. In addition, any
Person, in considering whether a Servicing Advance is a Nonrecoverable Servicing
Advance, will be entitled to give due regard to the existence of any
Nonrecoverable Advance or Workout Delayed Reimbursement Amounts with respect to
other Mortgage Loans which, at the time of such consideration, the recovery of
which are being deferred or delayed by the applicable Master Servicer, in light
of the fact that proceeds on the related Mortgage Loan are a source of recovery
not only for the Servicing Advance under consideration, but also as a potential
source of recovery of such Nonrecoverable Advance or Workout Delayed
Reimbursement Amounts which are or may be being deferred or delayed. In
addition, any such Person may update or change its recoverability determinations
at any time (but not reverse any other Person's determination that an Advance is
a Nonrecoverable Advance) and, consistent with the Servicing Standards, in the
case of the applicable Master Servicer, may obtain, promptly upon request, from
the Special Servicer any reasonably required analysis, Appraisals or market
value estimates or other information in the Special Servicer's possession for
making a recoverability determination. The determination by the applicable
Master Servicer, the Special Servicer or the Trustee, as the case may be, that
it has made a Nonrecoverable Servicing Advance or that any proposed Servicing
Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any
updated or changed recoverability determination, shall be evidenced by an
Officer's Certificate delivered by either of the Special Servicer or the
applicable Master Servicer to the other and to the Trustee, the Paying Agent,
the Directing Certificateholder and in the case of the One & Two Prudential
Plaza Mortgage Loan, any Other Servicer, and the Depositor, or by the Trustee to
the Depositor, the applicable Master Servicer, the Special Servicer, the Paying
Agent and the Directing Certificateholder and in the case of the One & Two
Prudential Plaza Mortgage Loan, any Other Servicer; provided, however, that the
Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standards, that any Servicing Advance previously made or proposed to be made is
a Nonrecoverable Servicing Advance and shall deliver to the applicable Master
Servicer and the Trustee notice of such determination. Any such determination
shall be conclusive and binding on the applicable Master Servicer, the Special
Servicer and the Trustee, provided, however, the Special Servicer shall have no
right to reverse any decision of the applicable Master Servicer that any
Servicing Advance is or would be nonrecoverable. The Officer's Certificate shall
set forth such determination of nonrecoverability and the considerations of the
applicable Master Servicer, the Special Servicer or the Trustee, as applicable,
forming the basis of such determination (which shall be accompanied by, to the
extent available, related income and expense statements, rent rolls, occupancy
status and property inspections, and shall include any existing Appraisal of the
related Mortgage Loan or Mortgaged Property). The Special Servicer shall
promptly furnish any party required to make Servicing Advances hereunder with
any information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as such party required to make Servicing Advances may
reasonably request for purposes of making recoverability determinations. The
Trustee shall be entitled to conclusively rely on the applicable Master
Servicer's or Special Servicer's, as the case may be, determination that a
Servicing Advance is or would be nonrecoverable, and the applicable Master
Servicer shall be entitled to conclusively rely on the Special Servicer's
determination that a Servicing Advance is or would be nonrecoverable. In the
case of a cross collateralized Mortgage Loan, such recoverability determination
shall take into account the cross collateralization of the related cross
collateralized Mortgage Loan.
"Notional Amount": In the case of the Class X Certificates, the
Class X Notional Amount. In the case of each Component, the amount set forth in
the applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2, Class A-3A, Class
A-3FL, Class X-0X, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J,
Class X, Class B, Class C, Class D and Class E Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the applicable Master Servicer or the Special Servicer, as the case may be,
or a Responsible Officer of the Trustee or Paying Agent, as the case may be.
"One & Two Prudential Plaza A2 Note": With respect to the One & Two
Prudential Plaza Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the One & Two Prudential Plaza
Mortgaged Property and designated as promissory note A2, which is not included
in the Trust and which is pari passu in right of payment to the One & Two
Prudential Plaza Mortgage Loan, to the extent set forth in the related Mortgage
Loan documents and as provided in the One & Two Prudential Plaza Intercreditor
Agreement.
"One & Two Prudential Plaza A2 Noteholder": The holder of the One &
Two Prudential Plaza A2 Note.
"One & Two Prudential Plaza Companion Loan Securities": Any class of
securities backed, wholly or partially, by the One & Two Prudential Plaza A2
Note.
"One & Two Prudential Plaza Intercreditor Agreement": The
Intercreditor Agreement, by and among the holders of the One & Two Prudential
Plaza Notes, relating to the relative rights of such holders of the One & Two
Prudential Plaza Whole Loan, as the same may be further amended in accordance
with the terms thereof.
"One & Two Prudential Plaza Mortgage Loan": With respect to the One
& Two Prudential Plaza Whole Loan, the Mortgage Loan that is included in the
Trust (identified as Mortgage Loan No. 2 on the Mortgage Loan Schedule), which
is designated as promissory note A1 and is pari passu in right of payment with
the One & Two Prudential Plaza A2 Note to the extent set forth in the One & Two
Prudential Plaza Whole Loan and as provided in the One & Two Prudential Plaza
Intercreditor Agreement.
"One & Two Prudential Plaza Mortgaged Property": The Mortgaged
Property that secures the One & Two Prudential Plaza Whole Loan.
"One & Two Prudential Plaza Notes": The Mortgage Note evidencing the
One & Two Prudential Plaza Mortgage Loan and the One & Two Prudential Plaza A2
Note.
"One & Two Prudential Plaza Remittance Date": The "Remittance Date"
as defined in the One & Two Prudential Plaza Intercreditor Agreement.
"One & Two Prudential Plaza Whole Loan": The One & Two Prudential
Plaza Mortgage Loan, together with the One & Two Prudential Plaza A2 Note, each
of which is secured by the same Mortgage on the One & Two Prudential Plaza
Mortgaged Property. References herein to the One & Two Prudential Plaza Whole
Loan shall be construed to refer to the aggregate indebtedness under the One &
Two Prudential Plaza Notes.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the applicable Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee and the Paying Agent, except that any opinion of counsel relating to (a)
the qualification of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC, (b)
compliance with the REMIC Provisions, (c) qualification of the Grantor Trust as
a grantor trust under subpart E, Part I of subchapter J of the Code for federal
income tax purposes or (d) the resignation of the applicable Master Servicer,
the Special Servicer or the Depositor pursuant to Section 6.04, must be an
opinion of counsel who is in fact Independent of the Depositor, the applicable
Master Servicer or the Special Servicer, as applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class S, the Class X and the Residual Certificates)
and the Class A-3FL Regular Interest, the initial aggregate principal amount
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": The initial Class X Notional Amount as
of the Closing Date, as specified in the Preliminary Statement.
"Other Pooling and Servicing Agreement": Any pooling and servicing
agreement or other agreement that creates a trust fund whose assets include the
One & Two Prudential Plaza A2 Note.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement or other agreement related thereto.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the applicable Master Servicer or the Trustee, as applicable, pursuant to
Section 4.03 or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-3A Pass-Through Rate, the Class A-3FL
Pass-Through Rate, the Class A-3FL Regular Interest Pass-Through Rate, the Class
A-3B Pass-Through Rate, the Class A-4 Pass-Through Rate, the Class A-SB
Pass-Through Rate, the Class A-1A Pass-Through Rate, the Class A-M Pass-Through
Rate, the Class A-J Pass-Through Rate, the Class B Pass-Through Rate, the Class
C Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through
Rate, the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class J Pass-Through Rate, the Class K Pass-Through Rate,
the Class L Pass-Through Rate, the Class M Pass-Through Rate, the Class N
Pass-Through Rate, the Class P Pass-Through Rate, the Class Q Pass-Through Rate,
the Class NR Pass-Through Rate or the Class X Pass-Through Rate.
"Paying Agent": LaSalle Bank National Association, a national
banking association, or any successor appointed thereto pursuant to Section 5.07
or any successor Paying Agent appointed hereunder.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof and calculated at the Paying Agent Fee
Rate.
"Paying Agent Fee Rate": 0.00013% per annum.
"PCAOB": The Public Company Accounting Oversight Board.
"Xxxxxxx PLC Building--Xxxxxxxx XX Mortgage Loan": That certain
Mortgage Loan identified on the Mortgage Loan Schedule as loan number 52.
"Xxxxxxx PLC Building--Xxxxxxxx Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Xxxxxxx PLC Building--Xxxxxxxx XX
Mortgage Loan.
"Xxxxxxx PLC Building--Xxxxxxxx Intercreditor Agreement": That
certain Intercreditor Agreement Among Note Holders, dated as of November 10,
2003, between LaSalle Bank National Association, as Purchaser, and Capital Lease
Funding, LLC, as supplemented by that certain Intercreditor Agreement
Supplement, dated as of April 12, 2006 between LaSalle Bank National Association
and Caplease, LP. The Xxxxxxx PLC Building--Xxxxxxxx Intercreditor Agreement
relates to the Xxxxxxx PLC Building--Xxxxxxxx XX Mortgage Loan.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan) or Companion Loan (or successor REO Loan), any amounts actually
collected thereon (or, in the case of a Mortgage Loan or Companion Loan (or
successor REO Loan thereto) that is part of a Loan Pair, actually collected on
such Loan Pair and allocated and paid on such Mortgage Loan or Companion Loan
(or successor REO Loan) in accordance with the related Intercreditor Agreement)
that represent late payment charges or Default Interest, other than a Yield
Maintenance Charge, and other than any Excess Interest.
"PennCom Plaza AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 10.
"PennCom Plaza Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the PennCom Plaza AB Mortgage Loan.
"PennCom Plaza Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of March 8, 2006, between Capmark Bank
(formerly known as GMAC Commercial Mortgage Bank), as Note A Lender, and Capmark
Finance Inc. (formerly known as GMAC Commercial Mortgage Corporation), as Note B
Lender. The PennCom Plaza Intercreditor Agreement relates to the PennCom Plaza
AB Mortgage Loan.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or Original Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Class S
Certificate or a Residual Certificate, the percentage interest is set forth on
the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent, if otherwise qualifying hereunder), regardless whether issued by the
Depositor, the applicable Master Servicer, the Special Servicer, the Trustee or
any of their respective Affiliates and having the required ratings, if any,
provided for in this definition and which shall not be subject to liquidation
prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of the United
States of America, the obligations of which are backed by the full faith
and credit of the United States of America that mature in one (1) year or
less from the date of acquisition; provided that any obligation of, or
guarantee by, Xxxxxx Mae or Xxxxxxx Mac, other than an unsecured senior
debt obligation of Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted
Investment only if such investment would not result in the downgrading,
withdrawal or qualification of the then-current rating assigned by each
Rating Agency to any Class of Certificate (or, insofar as there is then
outstanding any class of Companion Loan Securities that is then rated by
such Rating Agency, such class of securities) as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in one (1) year or less after the date of issuance
and are issued or held by any depository institution or trust company
(including the Trustee) incorporated or organized under the laws of the
United States of America or any State thereof and subject to supervision
and examination by federal or state banking authorities, so long as the
commercial paper or other short- term debt obligations of such depository
institution or trust company are rated in the highest rating categories of
each Rating Agency or such lower rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates (or insofar as
there is then outstanding any class of Companion Loan Securities that is
then rated by such Rating Agency, such class of securities) as evidenced
in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any state thereof which mature in one (1) year or less from the
date of acquisition, which debt obligations are rated in the highest
rating categories of each Rating Agency or such other rating as would not
result in the downgrading, withdrawal or qualification of the then current
rating assigned by each Rating Agency to any Class of Certificates (or
insofar as there is then outstanding any class of Companion Loan
Securities that is then rated by such Rating Agency, such class of
securities) as evidenced in writing; provided, however, that securities
issued by any particular corporation will not be Permitted Investments to
the extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held in the
accounts established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all Permitted
Investments in such accounts;
(v) commercial paper (including both non interest bearing discount
obligations and interest bearing obligations) of any corporation or other
entity organized under the laws of the United States or any state thereof
payable on demand or on a specified date maturing in one (1) year or less
from the date of acquisition thereof and which is rated in the highest
rating category of each Rating Agency or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then
assigned by each Rating Agency to any Class of Certificates (or insofar as
there is then outstanding any class of Companion Loan Securities that is
then rated by such Rating Agency, such class of securities) as evidenced
in writing;
(vi) money market funds, rated in the highest rating categories of
each Rating Agency; and
(vii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating Agency shall
have confirmed in writing that such investment will not result in a
downgrade, qualification or withdrawal of the then current rating assigned
by such Rating Agency to any Class of Certificates (or insofar as there is
then outstanding any class of Companion Loan Securities that is then rated
by such Rating Agency, such class of securities) as evidenced in writing
and (b) which qualifies as a "cash flow investment" pursuant to Section
860G(a)(6) of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the applicable Master Servicer receives an Opinion of Counsel, at its own
expense, to the effect that such investment will not adversely affect the status
of the Upper-Tier REMIC or the Lower-Tier REMIC or, insofar as a Serviced A2
Note is then included in a commercial mortgage securitization trust with respect
to the whole or any portion of which a REMIC election has been or will be made
and the relevant account may potentially hold funds related to such Serviced A2
Note, affect the status of such whole or portion as a REMIC under the Code or
result in imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC
or, if applicable, such whole or portion. Permitted Investments that are subject
to prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person or agent thereof who is a
Qualified Institutional Buyer other than a Disqualified Organization, an ERISA
Prohibited Holder or a Non-U.S. Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees
and any Excess Interest), to the extent collected from the related Mortgagor
(without regard to any prepayment premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such prepayment from and after such Due Date and ending
on the date of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the applicable
Master Servicer from the Servicing Fee to each Initial Sub-Servicer, which
monthly fee accrues at the rate per annum specified as such in the Sub-Servicing
Agreement with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York City edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates and the Class A-3FL Regular Interest,
an amount equal to the sum of (a) the Principal Shortfall for such Distribution
Date, (b) the Scheduled Principal Distribution Amount for such Distribution Date
and (c) the Unscheduled Principal Distribution Amount for such Distribution
Date; provided, that the Principal Distribution Amount for any Distribution Date
shall be reduced by the amount of any reimbursements of (i) Nonrecoverable
Advances plus interest on such Nonrecoverable Advances that are paid or
reimbursed from principal collections on the Mortgage Loans in a period during
which such principal collections would have otherwise been included in the
Principal Distribution Amount for such Distribution Date and (ii)
Workout-Delayed Reimbursement Amounts that were paid or reimbursed from
principal collections on the Mortgage Loans in a period during which such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date (provided, that, in the case of
clause (i) and (ii) above, if any of the amounts that were reimbursed from
principal collections on the Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will increase the Principal Distribution
Amount for the Distribution Date related to the period in which such recovery
occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class A (other than the Class A-3FL Certificates), Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class P, Class Q and Class NR
Certificates and the Class A-3FL Regular Interest for such preceding
Distribution Date pursuant to Section 4.01(a) on such preceding Distribution
Date. The Principal Shortfall for the initial Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchaser, each Mortgage
Loan Seller and certain financial market publishers (which initially shall be
Bloomberg, L.P., Xxxxx, LLC and Intex Solutions LLC), any Companion Holder, each
party to this Agreement, the Swap Counterparty, the Directing Certificateholder,
any designee of the Depositor and any other Person who shall have provided the
Paying Agent with a certificate, using the form attached hereto as Exhibit U,
which form is available from the Paying Agent, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated June 23, 2006, as supplemented by
the Prospectus Supplement dated June 23, 2006, relating to the offering of the
Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18 (a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan)
or, if applicable, Loan Pair to be purchased by a Mortgage Loan Seller pursuant
to Section 6 of the related Mortgage Loan Purchase Agreement, by the Majority
Controlling Class Certificateholder, the Special Servicer or the applicable
Master Servicer pursuant to Section 3.18(b), by the applicable Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates pursuant to Section 9.01 or to be otherwise sold pursuant
to Section 3.18(d), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan (or
related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Loan) at the related Mortgage Rate in effect from time to time
(exclusive of Default and Excess Interest) to but not including the Due
Date immediately preceding the Determination Date for the related
Distribution Date in which such Purchase Price is included in the
Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out of
collections from the Mortgage Loan and accrued and unpaid interest on
related Advances at the Reimbursement Rate, and any Special Servicing Fees
whether paid or then owing allocable to such Mortgage Loan and all
additional Trust Fund expenses in respect of such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by a
Mortgage Loan Seller pursuant to Section 6 of the applicable Mortgage Loan
Purchase Agreement, to the extent not otherwise included pursuant to
clause (iii), all reasonable out-of-pocket expenses reasonably incurred or
to be incurred by the applicable Master Servicer, the Special Servicer,
the Depositor and the Trustee in respect of the Breach or Defect giving
rise to the repurchase obligation, including any expenses arising out of
the enforcement of the repurchase obligation, including, without
limitation, all legal fees and expenses relating to the enforcement of
such repurchase obligations; plus
(v) Liquidation Fees, if any, payable with respect to such Mortgage
Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c),
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Loan Pair, the term "REO Loan" shall mean the REO Loan with respect to both the
related Mortgage Loan and the related Companion Loans.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with (x) an
insurance financial strength rating of at least "A3" by Xxxxx'x and (y) a
minimum claims paying ability rating of at least "A-" by S&P and "A" by Fitch
(or, if not rated by one of such Rating Agencies, then at least "A" by two other
nationally recognized statistical rating organizations (which may include the
other Rating Agencies)) and (ii) with respect to the fidelity bond and errors
and omissions Insurance Policy required to be maintained pursuant to Section
3.07(c), except as set forth in Section 3.07(c), an insurance company that has
an insurance financial strength rating (in the case of ratings by Xxxxx'x) or a
claims paying ability (in the case of ratings by S&P and Fitch) (or the
obligations of which are guaranteed or backed by a company having such insurance
financial strength or claims paying ability, as applicable) rated no lower than
two ratings below the rating assigned to the then highest rated outstanding
Certificate, but in no event lower than "A3" by Xxxxx'x, "A-" by S&P and "A" by
Fitch (or, if not rated by one of such Rating Agencies, then at least "A" by two
other nationally recognized statistical rating organizations (which may include
the other Rating Agencies)) or, in the case of clauses (i) and (ii), such other
rating as each Rating Agency shall have confirmed in writing will not cause such
Rating Agency to downgrade, qualify or withdraw the then current rating assigned
by such Rating Agency to any Class of Certificates (or insofar as there is then
outstanding any class of Companion Loan Securities that is then rated by such
Rating Agency, such class of securities) as evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan-to-value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current
loan-to-value ratio not higher than the then current loan-to-value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of
either of the REMICs established under this Agreement or the imposition of tax
on either of such REMICs other than a tax on income expressly permitted or
contemplated to be imposed by the terms of this Agreement, as determined by an
Opinion of Counsel; (xvii) have an engineering report with respect to the
related Mortgaged Property that will be delivered as a part of the related
Servicing File, and (xviii) be current in the payment of all scheduled payments
of principal and interest then due. In the event that more than one mortgage
loan is substituted for a deleted Mortgage Loan, then the amounts described in
clause (i) shall be determined on the basis of aggregate Stated Principal
Balances and each such proposed Qualified Substitute Mortgage Loan shall
individually satisfy each of the requirements specified in (ii) through (xviii)
and the rates described in clause (ii) above and the remaining term to stated
maturity referred to in clause (v) above shall be determined on a weighted
average basis, provided that no individual Mortgage Rate (net of the Servicing
Fee Rate and the Trustee Fee Rate) shall be lower than the highest fixed
Pass-Through Rate (and not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any class of Regular Certificates (other than the Class A-3FL
Certificates) or the Class A-3FL Regular Interest having a principal balance
then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, (i) the applicable Mortgage Loan Seller shall certify
that the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee and the Directing
Certificateholders and (ii) such Qualified Substitute Mortgage Loan shall become
part of the same Loan Group as the deleted Mortgage Loan.
"Rated Final Distribution Date": As to each Class of Certificates,
April 17, 2045.
"Rating Agency": Each of Xxxxx'x, S&P and Fitch, or their successors
in interest, and, if applicable, any rating agency rating the Companion Loan
Securities. If neither such rating agency nor any successor remains in
existence, "Rating Agency" shall be deemed to refer to such nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Paying Agent, the Special Servicer and the Master Servicers, and specific
ratings of Xxxxx'x, S&P and Fitch herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Rating Agency Trigger Event": The reduction of the Swap
Counterparty's long-term ratings below "A3", "A-" or "A-" by Xxxxx'x, S&P or
Fitch, respectively.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class NR and Class X Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in Section
11.15.
"Regulation AB Servicing Officer": Any officer or employee of the
applicable Master Servicer or the Special Servicer, as applicable, involved in,
or responsible for, the administration and servicing of the Mortgage Loans or
Companion Loans, or this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee and/or the
Paying Agent by such Master Servicer or the Special Servicer, as applicable, as
such list may from time to time be amended.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates or the Class A-3FL Regular Interest, as
applicable, the related Class of Uncertificated Lower-Tier Interests and the
related Components of Class X Certificates; for the following Components of the
Class X Certificates, the related Class of Uncertificated Lower-Tier Interests
and the related Class of Certificates or the Class A-3FL Regular Interest, as
applicable, set forth below; and for the following Classes of Uncertificated
Lower-Tier Interests, the related Components of the Class X Certificates and the
related Class of Certificates or the Class A-3FL Regular Interest, as
applicable, set forth below:
Related Components
Related Uncertificated of Class X
Related Certificate Lower-Tier Interest Certificates
------------------- ------------------- ------------
Class A-1 Certificate Class LA-1 Uncertificated XA-1
Interest
Class A-1A Certificate Class LA-1A Uncertificated XA-1A
Interest
Class A-2 Certificate Class LA-2 Uncertificated XA-2
Interest
Class A-3A Certificate Class LA-3A Uncertificated XA-3A
Interest
Class A-3FL Regular Class LA-3FL Uncertificated XA-3FL
Interest Interest
Class A-3B Certificate Class LA-3B Uncertificated XA-3B
Interest
Class A-4 Certificate Class LA-4 Uncertificated XA-4
Interest
Class A-SB Certificate Class LA-SB Uncertificated XA-SB
Interest
Class A-M Certificate Class LA-M Uncertificated XA-M
Interest
Class A-J Certificate Class LA-J Uncertificated XA-J
Interest
Class B Certificate Class LB Uncertificated XB
Interest
Class C Certificate Class LC Uncertificated XC
Interest
Class D Certificate Class LD Uncertificated XD
Interest
Class E Certificate Class LE Uncertificated XE
Interest
Class F Certificate Class LF Uncertificated XF
Interest
Class G Certificate Class LG Uncertificated XG
Interest
Class H Certificate Class LH Uncertificated XH
Interest
Class J Certificate Class LJ Uncertificated XJ
Interest
Class K Certificate Class LK Uncertificated XK
Interest
Class L Certificate Class LL Uncertificated XL
Interest
Class M Certificate Class LM Uncertificated XM
Interest
Class N Certificate Class LN Uncertificated XN
Interest
Class P Certificate Class LP Uncertificated XP
Interest
Class Q Certificate Class LQ Uncertificated XQ
Interest
Class NR Certificate Class LNR Uncertificated XNR
Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "LNR
Partners, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of Xxxxx Fargo Bank, N.A., as trustee, in trust for
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7, REO Account."
Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan or Companion Loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Loan shall
be deemed to be outstanding for so long as the related REO Property remains part
of the Trust Fund and provides for Assumed Scheduled Payments on each Due Date
therefor, and otherwise has the same terms and conditions as its predecessor
Mortgage Loan or Companion Loan, including, without limitation, with respect to
the calculation of the Mortgage Rate in effect from time to time (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan or Companion Loan). Each REO Loan shall be deemed to have an
initial outstanding principal balance and Stated Principal Balance equal to the
outstanding principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan or Companion Loan as of the date of the related REO
Acquisition. All amounts due and owing in respect of the predecessor Mortgage
Loan or Companion Loan as of the date of the related REO Acquisition, including,
without limitation, accrued and unpaid interest, shall continue to be due and
owing in respect of a REO Loan. All amounts payable or reimbursable to the
applicable Master Servicer, the Special Servicer or the Trustee, as applicable,
in respect of the predecessor Mortgage Loan or Companion Loan as of the date of
the related REO Acquisition, including, without limitation, any unpaid Special
Servicing Fees and Servicing Fees and any unreimbursed Advances, additional
Trust Fund expenses, together with any interest accrued and payable to the
applicable Master Servicer or the Trustee, as applicable, in respect of such
Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue
to be payable or reimbursable to the applicable Master Servicer or the Trustee,
as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and
Nonrecoverable Advances with respect to such REO Loan, in each case, that were
paid from collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso in the definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal Distribution Amount"
shall be deemed outstanding until recovered. Collections in respect of each REO
Loan (exclusive of the amounts to be applied to the payment of, or to be
reimbursed to the applicable Master Servicer or the Special Servicer for the
payment of unreimbursed Advances and interest thereon and the costs of
operating, managing, selling, leasing and maintaining the related REO Property)
shall be treated: first, as a recovery of accrued and unpaid interest on such
REO Loan at the related Mortgage Rate in effect from time to time to, but not
including, the Due Date in the Due Period of receipt (exclusive of any portion
that constitutes Excess Interest); second, as a recovery of Unliquidated
Advances with respect to such REO Loan; third, as a recovery of principal of
such REO Loan to the extent of its entire unpaid principal balance; fourth, as a
recovery of Nonrecoverable Advances with respect to such REO Loan; and fifth, in
accordance with the Servicing Standards of the applicable Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan,
including, without limitation, (i) Penalty Charges, (ii) Yield Maintenance
Charges and (iii) Excess Interest and other amounts, in that order; provided
that if the One & Two Prudential Plaza Whole Loan, or any AB Mortgage Loan and
its related Companion Loan become REO Loans, the treatment of the foregoing
amounts with respect to the One & Two Prudential Plaza Whole Loan or such AB
Mortgage Loan and its related Companion Loan, shall be subject to the terms of
the applicable Intercreditor Agreement and this Agreement.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement with respect to a Mortgaged Property
securing a Loan Pair) and the Trustee (as holder of the Class A-3FL Regular
Interest and the Uncertificated Lower-Tier Interests) through foreclosure,
acceptance of a deed-in-lieu of foreclosure or otherwise in accordance with
applicable law in connection with the default or imminent default of a Mortgage
Loan. For the avoidance of doubt, REO Property, to the extent allocable to a
Companion Loan, shall not be an asset of the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": Each Master Servicer, the Special Servicer,
the Trustee, the Paying Agent or a Servicing Function Participant engaged by any
such party, as the case may be.
"Request for Release": A release signed by a Servicing Officer of
the applicable Master Servicer or the Special Servicer, as applicable, in the
form of Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Paying Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee and Paying Agent, and with respect to any successor Trustee or
the Paying Agent, any officer or assistant officer in the corporate trust
department of the successor Trustee or the Paying Agent or any other officer of
the successor Trustee or the Paying Agent customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee or the Paying Agent because of such
officer's knowledge of and familiarity with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If S&P or any successor
remains in existence, "S&P" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Paying Agent, the Master Servicers and the Special Servicer and specific ratings
of S&P herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.
"San Xxxxxxxx A2 Note": The promissory note permitted by the San
Xxxxxxxx Mortgage Loan documents to be made by the related Mortgagor and to be
secured by the Mortgage on the San Xxxxxxxx Mortgaged Property and to be
designated as promissory note A2, which will not be included in the Trust and
which, if made, will be pari passu in right of payment to the San Xxxxxxxx
Mortgage Loan.
"San Xxxxxxxx Companion Loan Securities": Any class of securities
backed, wholly or partially, by the San Xxxxxxxx A2 Note.
"San Xxxxxxxx Mortgage Loan": That certain Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 18.
"San Xxxxxxxx Mortgaged Property": The Mortgaged Property that
secures the San Xxxxxxxx Mortgage Loan.
"San Xxxxxxxx Whole Loan": The San Xxxxxxxx Mortgage Loan, together
with the San Xxxxxxxx A2 Note, provided that the mortgagor with respect to the
San Xxxxxxxx Mortgage Loan has exercised its option to create the San Xxxxxxxx
A2 Note.
"Xxxxxxxx-Xxxxx Act": means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.05(a).
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of such Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, prior to, the related Due Period, and all Assumed
Scheduled Payments for the related Due Period, in each case to the extent either
(i) paid by the Mortgagor as of the Determination Date (or, with respect to each
Mortgage Loan with a Due Date occurring or a grace period ending after the
related Determination Date, the related Due Date or last day of such grace
period, as applicable, to the extent received by the Master Servicer as of the
Business Day preceding the related P&I Advance Date) (and not previously
distributed to Certificateholders) or (ii) advanced by the applicable Master
Servicer or the Trustee, as applicable, pursuant to Section 4.03 in respect of
such Distribution Date, and (b) all Balloon Payments to the extent received on
or prior to the related Determination Date (or, with respect to each Mortgage
Loan with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the applicable Master Servicer as of the
Business Day preceding the related P&I Advance Date), and to the extent not
included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Service(s)" or "Servicing": In accordance with Regulation AB, the
act of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"Serviced A2 Note": Each of the One & Two Prudential Plaza A2 Note
and the San Xxxxxxxx A2 Note, if and for so long as each such mortgage loan is
included in a Regulation AB Companion Loan Securitization.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the applicable Master Servicer, the Special
Servicer or the Trustee, as applicable, in connection with the servicing and
administering of (a) a Mortgage Loan (and, in the case of an AB Mortgage Loan,
the related Companion Loan and, in the case of the One & Two Prudential Plaza
Mortgage Loan, the One & Two Prudential Plaza A2 Note) in respect of which a
default, delinquency or other unanticipated event has occurred or as to which a
default is reasonably foreseeable or (b) an REO Property, including (in the case
of each of such clause (a) and clause (b)), but not limited to, (x) the cost of
(i) compliance with the applicable Master Servicer's obligations set forth in
Section 3.03(c), (ii) the preservation, restoration and protection of a
Mortgaged Property, (iii) obtaining any Insurance and Condemnation Proceeds or
any Liquidation Proceeds of the nature described in clauses (i)-(iv) of the
definition of "Liquidation Proceeds," (iv) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including foreclosures and (v)
the operation, leasing, management, maintenance and liquidation of any REO
Property and (y) any amount specifically designated herein to be paid as a
"Servicing Advance". Notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the applicable Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses or costs and expenses incurred by any such
party in connection with its purchase of a Mortgage Loan or REO Property.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time and which as
of the Closing Date are listed on Exhibit W hereto.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the applicable Master Servicer pursuant to the
first paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the applicable Master
Servicer and any date of determination, the aggregate of the products obtained
by multiplying, for each Mortgage Loan, (a) the Stated Principal Balance of such
Mortgage Loan as of the end of the immediately preceding Due Period and (b) the
difference between the Servicing Fee Rate for such Mortgage Loan over the
servicing fee rate (if any) applicable to such Mortgage Loan as specified in any
Sub-Servicing Agreement related to such Mortgage Loan. With respect to each
Sub-Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan serviced by such Sub-Servicer,
(a) the Stated Principal Balance of such Mortgage Loan as of the end of the
immediately preceding Due Period and (b) the servicing fee rate specified in the
related Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, a rate equal to the per annum rate set forth on the Mortgage Loan Schedule
under the heading "Servicing Fee Rate," in each case computed on the basis of
the Stated Principal Balance of the related Mortgage Loan. With respect to each
Companion Loan, the rate payable to the applicable Master Servicer with respect
to the related Mortgage Loan to the extent not inconsistent with the related
Intercreditor Agreement.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on or before the Closing Date and the applicable reference to Servicing
File relates to any period after the Closing Date) delivered by the related
Mortgage Loan Seller to the applicable Master Servicer: (i) a copy of any
engineering reports, environmental reports or property condition reports
received by the related Mortgage Loan Seller with respect to the related
Mortgaged Property; (ii) other than with respect to a hotel property (except
with respect to tenanted commercial space within a hotel property), copies of a
rent roll and, for any office, retail, industrial or warehouse property, a copy
of all leases and estoppels and subordination and non-disturbance agreements
delivered to the Mortgage Loan Seller; (iii) copies of related financial
statements or operating statements; (iv) all legal opinions (excluding
attorney-client communications between any Mortgage Loan Seller and its counsel
that are privileged communications or constitute legal or other due diligence
analyses), Mortgagor's Certificates and certificates of hazard insurance and/or
hazard insurance policies or other applicable insurance policies, if any,
delivered in connection with the closing of the Mortgage Loan; (v) a copy of the
Appraisal for the related Mortgaged Property(ies); (vi) the documents that were
delivered by or on behalf of the Mortgagor, which documents were required to be
delivered in connection with the closing of such Mortgage Loan; (vii) for any
Mortgage Loan that the related Mortgaged Property is leased to a single tenant,
a copy of the lease; and (viii) a copy of any property management agreement.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than any Master Servicer,
the Special Servicer, the Trustee and the Paying Agent that is performing
activities that address the Servicing Criteria, unless such Person's activities
relate only to 5% or less of the Mortgage Loans by unpaid principal balance.
"Servicing Group": Servicing Group A or Servicing Group B, as
applicable.
"Servicing Group A": Collectively, all of the Mortgage Loans that
are Group A Mortgage Loans and any successor REO Loans with respect thereto.
"Servicing Group B": Collectively, all of the Mortgage Loans that
are Group B Mortgage Loans and any successor REO Loans with respect thereto.
"Servicing Officer": Any officer and/or employee of the applicable
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, (and, in the case of an AB
Mortgage Loan, the related Companion Loan and, in the case of the One & Two
Prudential Plaza Mortgage Loan, the One & Two Prudential Plaza A2 Note) whose
name and specimen signature appear on a list of servicing officers furnished by
the applicable Master Servicer and the Special Servicer to the Paying Agent, the
Trustee and the Depositor on the Closing Date as such list may be amended from
time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan or
Companion Loan, the occurrence of any of the following events:
(i) with respect to a Mortgage Loan or Companion Loan that is not a
Balloon Mortgage Loan, (a) a payment default shall have occurred at its
original Maturity Date, or (b) if the original Maturity Date of such
Mortgage Loan or Companion Loan has been extended, a payment default shall
have occurred at such extended Maturity Date; or
(ii) with respect to each Mortgage Loan or Companion Loan that is a
Balloon Mortgage Loan, the Balloon Payment is delinquent; provided that if
the Mortgagor delivers to the Special Servicer prior to the date such
Balloon Payment was due a bona fide written refinancing commitment that
provides that such refinancing will occur within 60 days of the Balloon
Payment Due Date and is acceptable in form and substance to the Special
Servicer, a Servicing Transfer Event will not occur until the earlier of
(x) 60 days following the Due Date of the Balloon Payment and (y) the date
on which the refinancing commitment terminates; or
(iii) any Monthly Payment (other than a Balloon Payment) is more
than 60 days delinquent; or
(iv) the applicable Master Servicer makes a judgment, or receives
from the Special Servicer a written determination of the Special Servicer
concurred in by the Directing Certificateholder that a payment default is
imminent and is not likely to be cured by the related Mortgagor within 60
days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law,
or the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
is entered against the related Mortgagor; provided, that if such decree or
order is discharged or stayed within 60 days of being entered, or if, as
to a bankruptcy, the automatic stay is lifted within 60 days of a filing
for relief or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees, Workout
Fees or Liquidation Fees will be payable with respect thereto and any such
fees actually paid shall be reimbursed by the Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(vii) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(viii) a default of which the applicable Master Servicer or the
Special Servicer, as the case may be, has notice (other than a failure by
such Mortgagor to pay principal or interest) and which the applicable
Master Servicer or Special Servicer (in the case of the Special Servicer,
with Directing Certificateholder consent) determines in its good faith
reasonable judgment may materially and adversely affect the interests of
the Certificateholders or the holders of the related Companion Loan, if
applicable, has occurred and remained unremedied for the applicable grace
period specified in such Mortgage Loan or Companion Loan documents, other
than the failure to maintain terrorism insurance if such failure
constitutes an Acceptable Insurance Default (or if no grace period is
specified for those defaults which are capable of cure, 60 days); or
(ix) the applicable Master Servicer has received notice of the
foreclosure or proposed foreclosure of any lien on the related Mortgaged
Property; or
(x) the applicable Master Servicer or Special Servicer (in the case
of the Special Servicer, with the consent of the Directing
Certificateholder) determines that (i) a default (other than as described
in clause (iv) above) under the Mortgage Loan or Companion Loan is
imminent, (ii) such default will materially impair the value of the
corresponding Mortgaged Property as security for the Mortgage Loan and
Companion Loan (if any) or otherwise materially adversely affect the
interests of Certificateholders (and/or, with respect to the One & Two
Prudential Plaza Mortgage Loan, the One & Two Prudential Plaza A2
Noteholder and with respect to each AB Mortgage Loan, the related
Companion Holder), and (iii) the default will continue unremedied for the
applicable cure period under the terms of the Mortgage Loan or Companion
Loan or, if no cure period is specified and the default is capable of
being cured, for 30 days (provided that such 30-day grace period does not
apply to a default that gives rise to immediate acceleration without
application of a grace period under the terms of the Mortgage Loan or
Companion Loan); provided that any determination that a Servicing Transfer
Event has occurred under this clause (x) with respect to any Mortgage Loan
or Companion Loan solely by reason of the failure (or imminent failure) of
the related Mortgagor to maintain or cause to be maintained insurance
coverage against damages or losses arising from acts of terrorism may only
be made by the Special Servicer (with the consent of the Directing
Certificateholder).
If any Companion Loan becomes a Specially Serviced Mortgage Loan,
the related AB Mortgage Loan, shall also become a Specially Serviced Mortgage
Loan. If any AB Mortgage Loan becomes a Specially Serviced Mortgage Loan, the
related Companion Loan shall become a Specially Serviced Mortgage Loan. If the
One & Two Prudential Plaza A2 Note becomes a Specially Serviced Mortgage Loan,
the One & Two Prudential Plaza Mortgage Loan shall also become a Specially
Serviced Mortgage Loan. If the One & Two Prudential Plaza Mortgage Loan becomes
a Specially Serviced Mortgage Loan, the One & Two Prudential Plaza A2 Note shall
become a Specially Serviced Mortgage Loan. If any Mortgage Loan in a Crossed
Group becomes a Specially Serviced Mortgage Loan, each other Mortgage Loan in
such Crossed Group shall also become a Specially Serviced Mortgage Loan.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class X,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q and Class NR Certificates or, with respect to such Classes of
Certificates an assignment of the voting rights thereof; provided, however, that
the Certificate Balances of the Class A-1, Class A-2, Class A-1A, Class A-3A,
Class A-3FL, Class X-0X, Xxxxx X-0, Class A-M, Class A-J, Class B, Class C,
Class D and Class E Certificates have been retired.
"Special Servicer": LNR Partners, Inc., a Florida corporation, and
its successors in interest and assigns, or any successor Special Servicer
appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b), which in any event shall be a minimum of
$4,000 per month per Specially Serviced Mortgage Loan and REO Loan.
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.35% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan (including any REO
Loan) or Companion Loan (if provided for in the related Intercreditor Agreement)
in the same manner as interest is calculated on the Specially Serviced Mortgage
Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced by
the applicable Master Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related Mortgage
Loan) and Liquidation Proceeds received with respect to such Mortgage Loan
after the Cut-off Date (or in the case of a Qualified Substitute Mortgage
Loan, the Due Date in the related month of substitution); and
(iv) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred prior to
the end of the Due Period for the most recent Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to
such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related Mortgage
Loan), Liquidation Proceeds and REO Revenues received with respect to such
REO Loan.
A Mortgage Loan or a REO Loan that is a successor to a Mortgage Loan
shall be deemed to be part of the Trust Fund and to have an outstanding Stated
Principal Balance until the Distribution Date on which the payments or other
proceeds, if any, received in connection with a Liquidation Event in respect
thereof are to be (or, if no such payments or other proceeds are received in
connection with such Liquidation Event, would have been) distributed to
Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of any Master
Servicer (or a Sub-Servicer of the Master Servicer), the Special Servicer (or a
Sub-Servicer of the Special Servicer), an Additional Servicer (or a Sub-Servicer
of an Additional Servicer), the Trustee or the Paying Agent.
"Sub-Servicer": Any Person that (i) Services Mortgage Loans on
behalf of any Master Servicer, Special Servicer or any Sub-Servicer and (ii) is
responsible for the performance (whether directly or through Sub-Servicers or
Subcontractors) of servicing functions required to be performed by any Master
Servicer, Special Servicer, Servicing Function Participant or an Additional
Servicer, under this Agreement, with respect to some or all of the Mortgage
Loans, that are identified in Item 1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the
applicable Master Servicer or the Special Servicer, as the case may be, and any
Sub-Servicer relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Subordinate Certificate": Any Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q or Class NR Certificate.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage
Loans, the Substitution Shortfall Amount shall be determined as provided in the
preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the related Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Swap Contract": The 1992 ISDA Master Agreement, together with the
related schedule, confirmation and any annexes thereto, dated as of June 29,
2006, by and among the Swap Counterparty and the Trustee, solely in its capacity
as Trustee, on behalf of the Trust (a copy of which is attached hereto as
Exhibit CC).
"Swap Counterparty": JPMorgan, acting in such capacity, or its
successor in interest.
"Swap Counterparty Collateral Account": The trust account or
accounts created and maintained as a separate account or accounts by the Paying
Agent pursuant to Section 3.32(g), which shall be entitled "LaSalle Bank
National Association, as Paying Agent, in trust for the registered Holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass
Through Certificates, Series 2006-LDP7 Class A-3FL Certificates (subject to the
rights of the Swap Counterparty as provided in the Swap Contract), Swap
Counterparty Collateral Account," and which must be an Eligible Account (or a
subaccount of an Eligible Account). The Swap Counterparty Collateral Account
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Swap Default": Any failure on the part of the Swap Counterparty to
(i) make a required payment under the Swap Contract or (ii) either post
acceptable collateral or find an acceptable replacement Swap Counterparty after
a Rating Agency Trigger Event has occurred as required by Part 1, paragraph (k)
of the Schedule to the Master Agreement in the Swap Contract.
"Swap Termination Fees": Any fees or expenses payable by the Swap
Counterparty to the Trust in connection with a Swap Default, termination of the
Swap Contract or liquidation of the Swap Contract, as specified in the Swap
Contract.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto (subject to, in the case of the One & Two Prudential Plaza Mortgage Loan
or an AB Mortgage Loan, the interests of the One & Two Prudential Plaza A2
Noteholder or the related Companion Holder, as applicable, in the related
Mortgage File); (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date (or after the date of
substitution with respect to a Qualified Substitute Mortgage Loan, the Due Date
in the month of substitution); (iii) any REO Property (to the extent of the
Trust Fund's interest therein); (iv) all revenues received in respect of any REO
Property (to the extent of the Trust Fund's interest therein); (v) the
applicable Master Servicer's, the Special Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to this Agreement and any proceeds thereof (to the extent of
the Trust Fund's interest therein); (vi) any Assignments of Leases and any
security agreements (to the extent of the Trust Fund's interest therein); (vii)
any letters of credit, indemnities, guaranties or lease enhancement policies
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (viii) all assets deposited in the Servicing Accounts
(to the extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Accounts, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Floating
Rate Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account and
any REO Account (to the extent of the Trust Fund's interest in any such
account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies of the Depositor under each Mortgage Loan
Purchase Agreement (to the extent transferred to the Trustee); (xi) the
Uncertificated Lower-Tier Interests and the Class A-3FL Regular Interest; (xii)
the Swap Contract; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Mortgagor).
"Trustee": Xxxxx Fargo Bank, N.A., a national banking association,
in its capacity as trustee and its successors in interest, or any successor
Trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent Fee. No portion of the Trustee Fee shall be calculated by reference
to any Companion Loan or the principal balance of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.00055% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
Fee Rate.
"Trustee's Direction": As defined in Section 7.01(a).
"Trust-Related Litigation": As defined in Section 3.33(a).
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1, Class
LA-1A, Class LA-2, Class LA-3A, Class LA-3FL, Class XX-0X, Xxxxx XX-0, Class
LA-SB, Class LA-M, Class LA-J, Class LB, Class LC, Class LD, Class LE, Class LF,
Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM, Class LN, Class LP,
Class LQ and Class LNR Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., Nomura Securities
International, Inc., LaSalle Financial Services, Inc., Capmark Securities Inc.,
Deutsche Bank Securities Inc., EHY Securities (USA), LLC and Wachovia Capital
Markets, LLC.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the P&I Advance Date
and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to such Mortgage Loans and any REO Loans on or prior to
the related P&I Advance Date, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, 0000-XXX0, Xxxxx-Xxxx Distribution Account." Any such account or
accounts shall be an Eligible Account (or a subaccount of the Distribution
Account).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates and (ii) in the case of any other Class of Regular Certificates
(other than the Class X certificates) a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates (other than the Class
X Certificates), each determined as of the Distribution Date immediately
preceding such time. None of the Class S Certificates, the Class R Certificates
and the Class LR Certificates will be entitled to any Voting Rights. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates. Appraisal Reductions shall not result in a change in
the Class Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) is not reimbursed to the Person who made such Advance
on or before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Penalty Charges and Excess Interest) of interest and principal (other than any
amount for which a Liquidation Fee would be paid), including (i) Monthly
Payments, (ii) Balloon Payments and (iii) payments (other than those included in
clause (i) or (ii) of this definition) at maturity, received on each Corrected
Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the applicable Master Servicer, the
Special Servicer, the Paying Agent or the Trustee; provided, however, that
for purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on
the date they are applied in accordance with the Servicing Standards
consistent with the terms of the related Mortgage Note and Mortgage to
reduce the outstanding principal balance of such Mortgage Loan on which
interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates (other than the Class S, Class X and Residual Certificates)
or the Class A-3FL Regular Interest (and correspondingly, the Class A-3FL
Certificates) on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates (other than the Class S,
Class X and Residual Certificates) or the Class A-3FL Regular Interest
(and correspondingly, the Class A-3FL Certificates) on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class of Certificates (other than the Class S,
Class X and Residual Certificates) or the Class A-3FL Regular Interest
(and correspondingly, the Class A-3FL Certificates) on the immediately
preceding Distribution Date pursuant to Section 4.04, (c) the addition of
any Certificate Deferred Interest allocated to such Class of Certificates
(other than the Class S, Class X and Residual Certificates) or the Class
A-3FL Regular Interest (and correspondingly, the Class A-3FL Certificates)
and added to such Certificate Balance pursuant to Section 4.06(b) and (d)
any recoveries on the related Mortgage Loan of Nonrecoverable Advances
(plus interest thereon) that were previously reimbursed from principal
collections on the Mortgage Loans that resulted in a reduction of the
Principal Distribution Amount, Loan Group 1 Principal Distribution Amount
or Loan Group 2 Principal Distribution Amount, which recoveries are
allocated to such Class of Certificates or the Class A-3FL Regular
Interest and added to the Certificate Balance pursuant to Section 4.04
(a). The Certificate Balance of the Class A-3FL Certificates shall be
equal to the Certificate Balance of the Class A-3FL Regular Interest at
all times, and any reductions or increases in the Certificate Balance of
the Class A-3FL Regular Interest shall result in a corresponding reduction
or increase, as applicable, of the Certificate Balance of the Class A-3FL
Certificates.
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-3FL Regular
Interest and the Uncertificated Lower-Tier Interests) all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on
the Mortgage Loan Schedule, (ii) Sections 1, 2, 3, 4, 5, 6(a) (excluding clause
(viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17,
18 and 19 of each of the Mortgage Loan Purchase Agreements, (iii) the
Intercreditor Agreements and any intercreditor agreements with respect to any
related mezzanine loans, and (iv) all other assets included or to be included in
the Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans (other than (i) payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date and (ii) prepayments of principal collected on or before the
Cut-off Date. The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 12.07, is
intended by the parties to constitute a sale. In connection with the assignment
to the Trustee of Sections 1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of
Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19
of each of the Mortgage Loan Purchase Agreements, it is intended that the
Trustee get the benefit of Sections 10, 11 and 14 thereof in connection with any
exercise of rights under the assigned Sections, and the Depositor shall use its
best efforts to make available to the Trustee the benefits of Sections 10, 11
and 14 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the applicable Master Servicer. If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, the original Mortgage Note, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied; provided, such Mortgage Loan Seller shall deliver
a copy or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and indemnifying
the Trustee. If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of filing or recording thereon (if intended to be
recorded or filed), solely because of a delay caused by the public filing or
recording office where such document or instrument has been delivered for filing
or recordation, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied on a provisional basis as of the Closing Date as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, provided that a duplicate
original or a photocopy of such non-delivered document or instrument (certified
by the applicable public filing or recording office, the applicable title
insurance company or the applicable Mortgage Loan Seller to be a true and
complete copy of the original thereof submitted for filing or recording) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof (certified by the appropriate county
recorder's office, in the case of the documents and/or instruments referred to
in clause (ii) of the definition of "Mortgage File," to be a true and complete
copy of the original thereof submitted for recording), with evidence of filing
or recording thereon, is delivered to the Trustee or such Custodian within 180
days of the Closing Date (or within such longer period, not to exceed 18 months,
after the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office such original or photocopy). If the applicable Mortgage Loan
Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)
and (xii) of the definition of "Mortgage File," with evidence of filing or
recording thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost or destroyed, the
delivery requirements of the applicable Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, provided
that a photocopy of such non-delivered document or instrument (with evidence of
filing or recording thereon and certified in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File" by
the appropriate county recorder's office to be a true and complete copy of the
original thereof submitted for recording) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date. Neither the Trustee
nor any Custodian shall in any way be liable for any failure by any Mortgage
Loan Seller or the Depositor to comply with the delivery requirements of the
related Mortgage Loan Purchase Agreement and this Section 2.01(b). If, on the
Closing Date as to any Mortgage Loan, the applicable Mortgage Loan Seller cannot
deliver in complete and recordable form (or form suitable for filing or
recording, if applicable) any one of the assignments in favor of the Trustee
referred to in clause (iii), (v) (to the extent not already assigned pursuant to
clause (iii)), or (xi) of the definition of "Mortgage File" solely because of
the unavailability of filing or recording information as to any existing
document or instrument and/or because such assignments are assignments in blank
and have not been completed in favor of the Trustee as specified in the related
clause(s) of the definition of "Mortgage File," such Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b) by delivering with respect to such
Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan
substantially in the form of Exhibit H; provided that all required original
assignments with respect to such Mortgage Loan (except for any Mortgage which
has been recorded in the name of MERS or its designee), in fully complete and
recordable form (or form suitable for filing or recording, if applicable), are
delivered to the Trustee or its Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months after the Closing Date,
as the Trustee in its discretion may consent to, which consent shall not be
unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the applicable Master Servicer and the applicable Master
Servicer shall hold the original (or copy, if such original has been submitted
by the applicable Mortgage Loan Seller to the issuing bank to effect an
assignment or amendment of such letter of credit (changing the beneficiary
thereof to the Trust (in care of the applicable Master Servicer)) that may be
required in order for the applicable Master Servicer to draw on such letter of
credit on behalf of the Trust in accordance with the applicable terms thereof
and/or of the related Mortgage Loan documents); and the applicable Mortgage Loan
Seller shall be deemed to have satisfied the delivery requirements of the
related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering
with respect to any letter(s) of credit a copy thereof to the Trustee together
with an officer's certificate of the applicable Mortgage Loan Seller certifying
that such document has been delivered to the applicable Master Servicer or an
officer's certificate from the applicable Master Servicer certifying that it
holds the letter(s) of credit pursuant to this Section 2.01(b), one of which
shall be delivered to the Trustee on the Closing Date. If a letter of credit
referred to in the previous sentence is not in a form that would allow the
applicable Master Servicer to draw on such letter of credit on behalf of the
Trust in accordance with the applicable terms thereof and/or of the related
Mortgage Loan documents, the applicable Mortgage Loan Seller shall deliver the
appropriate assignment or amendment documents (or copies of such assignment or
amendment documents if the related Mortgage Loan Seller has submitted the
originals to the related issuer of such letter of credit for processing) to the
applicable Master Servicer within 30 days of the Closing Date. If not otherwise
paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any
costs of assignment or amendment of such letter(s) of credit required in order
for the applicable Master Servicer to draw on such letter(s) of credit on behalf
of the Trust and shall cooperate with the reasonable requests of the applicable
Master Servicer or the Special Servicer, as applicable, in connection with
effectuating a draw under any such letter of credit prior to the date such
letter of credit is assigned or amended in order that it may be drawn by the
applicable Master Servicer on behalf of the Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
("Assignments" and, individually, "Assignment") relating to the Mortgage Loans
conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper
form for filing or recording, as applicable, and to submit such Assignments
(except with respect to any Assignments that have been recorded in the name of
MERS or its designee) for filing or recording, as the case may be, in the
applicable public filing or recording office, and on the Closing Date, such
Mortgage Loan Seller may deliver one (1) omnibus assignment for all such
Mortgage Loans to the Trustee or its Custodian as provided in Section 2.01(b).
Except under the circumstances provided for in the last sentence of this
subsection (c), the related Mortgage Loan Seller will itself, or a third party
at such Mortgage Loan Seller's expense will, promptly (and in any event within
120 days of the later of the Closing Date and the Trustee's actual receipt of
the related documents and the necessary recording and filing information) cause
to be submitted for recording or filing, as the case may be, in the appropriate
public office for real property records or UCC Financing Statements, as
appropriate, each assignment to the Trustee referred to in clauses (iii) and (v)
of the definition of "Mortgage File" and each UCC assignment to the Trustee
referred to in clause (xi) of the definition of "Mortgage File." Each such
Assignment submitted for recording shall reflect that it should be returned by
the public recording office to the Trustee or its designee following recording
(or to the agent of the Mortgage Loan Seller who will then be responsible for
delivery of the same to the Trustee or its designee), and each such UCC
assignment submitted for recording or filing shall reflect that the file copy
thereof should be returned to the Trustee or its designee following recording or
filing (or to the agent of the Mortgage Loan Seller who will then be responsible
for delivery of the same to the Trustee or its designee). If any such document
or instrument is determined to be incomplete or not to meet the recording or
filing requirements of the jurisdiction in which it is to be recorded or filed,
or is lost by the public office or returned unrecorded or unfiled, as the case
may be, because of a defect therein, on or about 180 days after the Closing
Date, the related Mortgage Loan Seller or its designee shall prepare, at its own
expense, a substitute therefor or cure such defect, as the case may be, and
thereafter the Mortgage Loan Seller or its designee shall, at the expense of the
related Mortgage Loan Seller, upon receipt thereof cause the same to be duly
recorded or filed, as appropriate. If, by the first anniversary of the Closing
Date, the Trustee has not received confirmation of the recording or filing as
the case may be, of any such Assignment, it shall so advise the related Mortgage
Loan Seller who may then pursue such confirmation itself or request that the
Trustee pursue such confirmation at the related Mortgage Loan Seller's expense,
and upon such a request and provision for payment of such expenses satisfactory
to the Trustee, the Trustee, at the expense of the applicable Mortgage Loan
Seller, shall cause a search of the land records of each applicable jurisdiction
or of the records of the offices of the applicable Secretary of State for
confirmation that the Assignment appears in such records and retain a copy of
such confirmation in the related Mortgage File. In the event that confirmation
of the recording or filing of an Assignment cannot be obtained, the Trustee or
the related Mortgage Loan Seller, as applicable, shall promptly inform the other
and the Trustee shall provide such Mortgage Loan Seller with a copy of the
Assignment and request the preparation of a new Assignment. The related Mortgage
Loan Seller shall pay the expenses for the preparation of replacement
Assignments for any Assignments which, having been properly submitted for filing
or recording to the appropriate governmental office by the Trustee, fail to
appear of record and must be resubmitted. Notwithstanding the foregoing, there
shall be no requirement to record any assignment to the Trustee referred to in
clause (iii) or (v) of the definition of "Mortgage File," or to file any UCC-3
to the Trustee referred to in clause (xi) of the definition of "Mortgage File,"
in those jurisdictions where, in the written opinion of local counsel (which
opinion shall be an expense of the related Mortgage Loan Seller) acceptable to
the Depositor and the Trustee, such recordation and/or filing is not required to
protect the Trustee's interest in the related Mortgage Loans against sale,
further assignment, satisfaction or discharge by the related Mortgage Loan
Seller, the applicable Master Servicer, the Special Servicer, any Sub-Servicer
or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications (including such communications
between the Mortgage Loan Seller and its Affiliates) and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications which are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the applicable Master Servicer within 5 Business Days after the
Closing Date and shall be held by the applicable Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders (and as holder of
the Class A-3FL Regular Interest and the Uncertificated Lower-Tier Interests)
and, if applicable, on behalf of the related Companion Holder. Such documents
and records shall be any documents and records (with the exception of any items
excluded under the immediately preceding sentence) that would otherwise be a
part of the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the applicable Master
Servicer, on or before the Closing Date, a fully executed original counterpart
of each of the Mortgage Loan Purchase Agreements, as in full force and effect,
without amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans by
such Mortgage Loan Seller, whether such accounts are held in the name of the
applicable Mortgage Loan Seller or any other name, to be transferred to the
applicable Master Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
(g) The Paying Agent hereby acknowledges the receipt by it of the
Closing Date Deposit Amount. The Paying Agent shall hold such Closing Date
Deposit Amount in the Distribution Account and shall include the Closing Date
Deposit Amount in the Available Distribution Amount for the initial Distribution
Date. The Closing Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clauses (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate of the related Mortgage Loan Seller or the applicable
Master Servicer as contemplated by the third to the last sentence of Section
2.01(b) hereof) and (xxiii) of the definition of "Mortgage File" with respect to
each Mortgage Loan, of a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, and of all other assets included in the Trust
Fund and (2) declares (a) that it or a Custodian on its behalf holds and will
hold such documents and the other documents delivered or caused to be delivered
by the Mortgage Loan Sellers that constitute the Mortgage Files, and (b) that it
holds and will hold such other assets included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders and,
with respect to any original document in the Mortgage File for each Loan Pair,
for any present or future Companion Holder (and for the benefit of the Trustee
as holder of the Class A-3FL Regular Interest and the Uncertificated Lower-Tier
Interests), as applicable. If any Mortgage Loan Seller is unable to deliver or
cause the delivery of any original Mortgage Note, such Mortgage Loan Seller may
deliver a copy of such Mortgage Note, together with a signed lost note affidavit
and appropriate indemnity and shall thereby be deemed to have satisfied the
document delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit V, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicers, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full) and except as specifically identified in any
exception report annexed to such writing (the "Trustee Exception Report"), (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to last sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, (iii) based on such examination
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi)
and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct and (iv)
the Trustee on behalf of the Trust is shown as the owner of each Mortgage
recorded in the name of MERS or its designee. With respect to each Mortgage Loan
listed on the Trustee Exception Report, the Trustee shall specifically identify
such Mortgage Loan together with the nature of such exception (in the form
reasonably acceptable to the Trustee and the related Mortgage Loan Seller and
separating items required to be in the Mortgage File but never delivered from
items which were delivered by the related Mortgage Loan Seller but are out for
filing or recording and have not been returned by the filing office or the
recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit V, certify in writing to each of the Depositor, the
Master Servicers, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the third to last sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the applicable Mortgage Loan
Seller have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and appear to be executed and relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File," resulting solely from a delay in the return
of the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
more than thirty (30) days following a Servicing Transfer Event, and (ii)
impairs or prohibits in any material way the applicable Master Servicer's or
Special Servicer's ability to act upon, or enforce, any of the Trust Fund's
rights and remedies under the related Mortgage Loan, or Specially Serviced
Mortgage Loan, as applicable, at the time the applicable Master Servicer or
Special Servicer attempts to act upon, or enforce, any such right or remedy, at
which time the Directing Certificateholder, in its sole judgment, may permit the
related Mortgage Loan Seller, in lieu of repurchasing or substituting for the
related Mortgage Loan, to deposit with the Trustee an amount, to be held in
trust in a segregated Eligible Account, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan (in the alternative, the related Mortgage
Loan Seller may deliver to the Trustee a letter of credit in such amount). Such
funds or letter of credit, as applicable, shall be held by the Trustee until the
date on which the Trustee determines that such document deficiency has been
cured or the related Mortgage Loan is no longer part of the Trust Fund, at which
time the Trustee shall return such funds (or letter of credit) to the related
Mortgage Loan Seller; provided however, that the Trustee shall be entitled to
request a certification by the related Master Servicer as to whether any such
document deficiency has been cured to the extent the related Master Servicer is
solely able to make that determination. If the applicable Master Servicer or the
Special Servicer, as applicable, certifies to the Trustee that it has determined
in the exercise of its reasonable judgment that the document with respect to
which any such document deficiency exists is required in connection with an
imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any Mortgagor or third party with
respect to the related Mortgage Loan, establishing the validity or priority of
any lien on collateral securing the Mortgage Loan or for any immediate
significant servicing obligation, the related Mortgage Loan Seller shall be
required to repurchase or substitute for the related Mortgage Loan in accordance
with the terms and conditions of Section 2.03(b) or Section 6 of the related
Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan
Seller shall not be required to repurchase the Mortgage Loan for a period of
ninety (90) days after receipt of a notice to repurchase (together with any
applicable extension period) if it is attempting to recover the document from
the applicable filing or recording office and provides an officer's certificate
setting forth what actions such Mortgage Loan Seller is pursuing in connection
with such recovery. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, or cause the applicable Master Servicer to
deposit, such funds, or shall draw upon the letter of credit and deposit the
proceeds of such draw, into the Certificate Account to be applied to the
Purchase Price (or the Substitution Shortfall Amount, if applicable, in which
event the amount of such funds or proceeds which exceed the Substitution
Shortfall Amount shall be returned to the Mortgage Loan Seller) in accordance
with Section 2.03(b). All such funds deposited with the Trustee shall be
invested in Permitted Investments, at the direction and for the benefit of the
related Mortgage Loan Seller. Such funds shall be treated as an "outside reserve
fund" under the REMIC Provisions, which, together with any reimbursement from
the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan Seller
for federal income tax purposes, which Mortgage Loan Seller shall remain liable
for any taxes payable on income or gain with respect thereto. If the Mortgage
related to the Mortgage Loan to be repurchased or substituted has been recorded
in the name of MERS or its designee, the applicable Master Servicer shall use
reasonable efforts to reflect the release of such Mortgage on the records of
MERS.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (xiii), (xiv), (xv) through
(xxi) and (xxiii) of the definition of "Mortgage File" exist or are required to
be delivered by the Depositor, the Mortgage Loan Sellers or any other Person
(unless identified on the Mortgage Loan Checklist) or (ii) to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, sufficient to perfect and maintain the perfection of a security
interest or appropriate for the represented purpose or that they are other than
what they purport to be on their face and, with respect to the documents
specified in clause (ix), whether the insurance is effective as of the date of
the recordation of the related Mortgage, whether all endorsements or riders
issued are included in the file or if the policy has not been issued whether any
acceptable replacement document has been dated the date of the related Mortgage
Loan funding. Further, with respect to the UCC financing statements referenced
in the Mortgage File, absent actual knowledge to the contrary or copies of UCC
financing statements delivered to the Trustee as part of the Mortgage File
indicating otherwise, the Trustee may assume, for the purposes of the filings
and the certification to be delivered in accordance with this Section 2.02 that
the related Mortgage File should include one state level UCC financing statement
filing for each Mortgagor, except to the extent multiple Mortgagors which are
located in the same state are named as debtors in the same UCC financing
statement filing), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are
named as debtors in the same UCC financing statement filing). The assignments of
the UCC financing statements to be assigned to the Trust will be delivered on
the new national forms (or on such other form as may be acceptable for filing or
recording in the applicable jurisdiction) and in a format suitable for filing or
recording, as applicable, and will be filed or recorded in the jurisdiction(s)
where such UCC financing statements were originally filed or recorded, as
indicated in the documents provided, and in accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the applicable Master Servicer,
the Special Servicer, the Directing Certificateholder and the applicable
Mortgage Loan Seller (and in no event later than 90 days after the Closing Date
and every quarter thereafter, commencing with the quarter ending September 30,
2006 until June 30, 2008, by providing a written report (the "Trustee Exception
Report") setting forth for each affected Mortgage Loan, with particularity, the
nature of such Defect (in a form reasonably acceptable to the Trustee and such
Mortgage Loan Seller and separating items required to be in the Mortgage File
but never delivered from items which were delivered by such Mortgage Loan Seller
but are out for recording or filing and have not been returned by the recorder's
office or filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the applicable Master Servicer, the
Special Servicer, the Paying Agent or the Trustee discovers (without implying
any duty of such person to make, or to attempt to make, such a discovery) or
receives notice of a Defect in any Mortgage File or a breach of any
representation or warranty with respect to a Mortgage Loan set forth in, or
required to be made with respect to, a Mortgage Loan by the applicable Mortgage
Loan Seller pursuant to the related Mortgage Loan Purchase Agreement (a
"Breach"), which Defect or Breach, as the case may be, materially and adversely
affects the value of any Mortgage Loan, the value of the related Mortgaged
Property or the interests of the Trustee or any Certificateholder therein, such
Certificateholder, the applicable Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or the Directing Certificateholder, as applicable,
shall give prompt written notice of such Defect or Breach, as the case may be,
to the Depositor, the applicable Master Servicer, the Special Servicer, the
applicable Mortgage Loan Seller, the Trustee, the Paying Agent and the Directing
Certificateholder and shall request in writing that the applicable Mortgage Loan
Seller, not later than 90 days after the earlier of (i) the applicable Mortgage
Loan Seller's receipt of such notice or (ii) in the case of a Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulation Section 1.860G-2(f)(2) that causes a defective mortgage loan to be
treated as a qualified mortgage, the applicable Mortgage Loan Seller's discovery
of such Defect or Breach (the "Initial Cure Period") that materially and
adversely affects the value of any Mortgage Loan, the value of the related
Mortgaged Property or the interests of the Trustee or any Certificateholder
therein, (i) cure such Defect or Breach, as the case may be, in all material
respects, (ii) repurchase the affected Mortgage Loan or REO Loan at the
applicable Purchase Price and in conformity with the applicable Mortgage Loan
Purchase Agreement and this Agreement or (iii) substitute a Qualified Substitute
Mortgage Loan (other than with respect to the One & Two Prudential Plaza
Mortgage Loan, for which no substitution will be permitted) for such affected
Mortgage Loan or REO Loan (provided that in no event shall any such substitution
occur on or after the second anniversary of the Closing Date) and pay the
applicable Master Servicer for deposit into the related Certificate Account, any
Substitution Shortfall Amount in connection therewith and in conformity with the
applicable Mortgage Loan Purchase Agreement and this Agreement; provided,
however, that except with respect to a Defect resulting solely from the failure
by a Mortgage Loan Seller to deliver to the Trustee or Custodian the actual
policy of lender's title insurance required pursuant to clause (ix) of the
definition of Mortgage File by a date not later than 18 months following the
Closing Date, if such Breach or Defect is capable of being cured but is not
cured within the Initial Cure Period, and the applicable Mortgage Loan Seller
has commenced and is diligently proceeding with the cure of such Breach or
Defect within the Initial Cure Period, the applicable Mortgage Loan Seller shall
have an additional 90 days commencing immediately upon the expiration of the
Initial Cure Period (such additional 90 day period, the "Extended Cure Period")
to complete such cure (or, failing such cure, to repurchase the related Mortgage
Loan or REO Loan or substitute a Qualified Substitute Mortgage Loan) (other than
with respect to the One & Two Prudential Plaza Mortgage Loan, for which no
substitution will be permitted) and provided, further, that with respect to such
Extended Cure Period the applicable Mortgage Loan Seller shall have delivered an
officer's certificate to the Trustee (who shall promptly deliver a copy of such
officer's certificate to the Rating Agencies, the applicable Master Servicer,
the Special Servicer and the Directing Certificateholder), setting forth the
reason such Breach or Defect is not capable of being cured within the Initial
Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the applicable Mortgage Loan
Seller anticipates that such Breach or Defect will be cured within the Extended
Cure Period. Notwithstanding the foregoing, any Defect or Breach which causes
any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) that causes a defective mortgage loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interests of Certificateholders therein, and such Mortgage Loan shall
be repurchased or substituted for without regard to the Extended Cure Period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer to the
applicable Certificate Account. If any Breach pertains to a representation or
warranty that the related Mortgage Loan documents or any particular Mortgage
Loan document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s), then the related Mortgage Loan Seller shall cure such Breach within
the applicable cure period (as the same may be extended) by reimbursing the
Trust Fund (by wire transfer of immediately available funds) the reasonable
amount of any such costs and expenses incurred by the applicable Master
Servicer, the Special Servicer, the Paying Agent, the Trustee or the Trust Fund
that are the basis of such Breach and have not been reimbursed by the related
Mortgagor; provided, however, that in the event any such costs and expenses
exceed $10,000, the related Mortgage Loan Seller shall have the option to either
repurchase or substitute for the related Mortgage Loan as provided above or pay
such costs and expenses. Except as provided in the proviso to the immediately
preceding sentence, the related Mortgage Loan Seller shall remit the amount of
such costs and expenses and upon its making such remittance, the related
Mortgage Loan Seller shall be deemed to have cured such Breach in all respects.
To the extent any fees or expenses that are the subject of a cure by the related
Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the
portion of the cure payment made by the related Mortgage Loan Seller equal to
such fees or expenses obtained from the Mortgagor shall be returned to the
related Mortgage Loan Seller pursuant to Section 2.03(f) below. Monthly Payments
due with respect to each Qualified Substitute Mortgage Loan (if any) after the
related Due Date in the month of substitution, and Monthly Payments due with
respect to each Mortgage Loan being repurchased or replaced after the related
Cut-off Date and received by the applicable Master Servicer or the Special
Servicer on behalf of the Trust on or prior to the related date of repurchase or
substitution, shall be part of the Trust Fund. Monthly Payments due with respect
to each Qualified Substitute Mortgage Loan (if any) on or prior to the related
Due Date in the month of substitution, and Monthly Payments due with respect to
each Mortgage Loan being repurchased or replaced and received by the applicable
Master Servicer or the Special Servicer on behalf of the Trust after the related
date of repurchase or substitution, shall not be part of the Trust Fund and are
to be remitted by the applicable Master Servicer to the Mortgage Loan Seller
effecting the related repurchase or substitution promptly following receipt.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of Mortgage File; (d) the absence from the
Mortgage File of any intervening assignments required to create a complete chain
of assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of each such missing intervening assignment
and a certificate stating that the original intervening assignment was sent for
filing or recordation, as applicable; (e) the absence from the Mortgage File of
any required letter of credit; or (f) with respect to any leasehold mortgage
loan, the absence from the related Mortgage File of a copy (or an original, if
available) of the related Ground Lease; provided, however, that no Defect
(except the Defects previously described in clauses (a) through (f)) shall be
considered to materially and adversely affect the value of the related Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or Certificateholders unless the document with respect to which the
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or a binding commitment to issue a lender's title insurance policy,
as provided in clause (ix) of the definition of Mortgage File herein, in lieu of
the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the applicable Master Servicer and the Special
Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery
to each of the Trustee, the applicable Master Servicer and the Special Servicer
of a trust receipt executed by the applicable Mortgage Loan Seller evidencing
such repurchase or substitution, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by each of the Trustee, the
applicable Master Servicer and the Special Servicer, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the applicable
Mortgage Loan Seller in the same manner as provided in Section 6 of the related
Mortgage Loan Purchase Agreement, so as to vest in such Mortgage Loan Seller the
legal and beneficial ownership of such repurchased or substituted for Mortgage
Loan (including property acquired in respect thereof or proceeds of any
insurance policy with respect thereto) and the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of such
Mortgage Loan Purchase Agreement.
(e) The applicable Master Servicer or Special Servicer (in the case
of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-3FL Regular
Interest and the Uncertificated Lower-Tier Interests), enforce the obligations
of the applicable Mortgage Loan Seller under the applicable Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, shall be carried out in such form, to such extent and at
such time as the applicable Master Servicer or the Special Servicer, as the case
may be, would require were it, in its individual capacity, the owner of the
affected Mortgage Loan(s). Any costs incurred by the applicable Master Servicer
or the Special Servicer with respect to the enforcement of the obligations of
the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase
Agreement shall be deemed to be Servicing Advances to the extent not otherwise
provided herein. The applicable Master Servicer and the Special Servicer, as the
case may be, shall be reimbursed for the reasonable costs of such enforcement:
first, from a specific recovery, if any, of costs, expenses or attorneys' fees
against the applicable Mortgage Loan Seller; second, pursuant to Section
3.05(a)(vii) herein out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then pursuant to Section 3.05(a)(viii) herein
out of general collections on the Mortgage Loans on deposit in the Certificate
Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Paying Agent, the Trust Fund, the applicable Master
Servicer and the Special Servicer to recover amounts owed by the related
Mortgagor under the terms of such Mortgage Loan, including, without limitation,
the rights to recover unreimbursed Advances, accrued and unpaid interest on
Advances at the Reimbursement Rate and unpaid or unreimbursed expenses of the
Trustee, the Paying Agent, the Trust Fund, the applicable Master Servicer or the
Special Servicer allocable to such Mortgage Loan. The applicable Master Servicer
or, with respect to a Specially Serviced Mortgage Loan, the Special Servicer,
shall use reasonable efforts to recover such expenses for such Mortgage Loan
Seller to the extent consistent with the Servicing Standards, but taking into
account the subordinate nature of the reimbursement to the Mortgage Loan Seller;
provided, however, that the applicable Master Servicer or, with respect to a
Specially Serviced Mortgage Loan, the Special Servicer, determines in the
exercise of its sole discretion consistent with the Servicing Standards that
such actions by it will not impair the applicable Master Servicer's and/or the
Special Servicer's collection or recovery of principal, interest and other sums
due with respect to the related Mortgage Loan which would otherwise be payable
to the applicable Master Servicer, the Special Servicer, the Trustee, the Paying
Agent and the Certificateholders pursuant to the terms of this Agreement;
provided, further, that if the Mortgage Loan Seller has not been notified that
it must repurchase the Mortgage Loan, the Special Servicer may waive the
collection of amounts due on behalf of the Mortgage Loan Seller in its sole
discretion in accordance with the Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller shall be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria. In the event that the remaining Crossed Loans
in such Crossed Group satisfy the aforementioned criteria, the applicable
Mortgage Loan Seller may elect either to repurchase or substitute for only the
affected Crossed Loan as to which the related Breach or Defect exists or to
repurchase or substitute for all of the Crossed Loans in the related Crossed
Group. For the avoidance of doubt, the Mortgage Loan affected by the applicable
Breach or Defect and Qualified Substitute Mortgage Loan, if any, must satisfy
all other criteria for repurchase and substitution of Mortgage Loans set forth
herein. Any reserve or other cash collateral or letters of credit securing the
Crossed Loans shall be allocated between such Mortgage Loans in accordance with
the related Mortgage Loan documents or otherwise on a pro rata basis based upon
their outstanding Stated Principal Balances. Except as provided in Section
2.03(h), all other terms of the Mortgage Loans shall remain in full force and
effect without any modification thereof.
(h) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
(i) Notwithstanding the foregoing, if there is a material Breach or
a material Defect with respect to a Mortgaged Property (but not all of the
Mortgaged Properties) that secure a Mortgage Loan or group of Crossed Loans, the
applicable Mortgage Loan Seller will not be obligated to repurchase the Mortgage
Loan or group of Crossed Loans, provided that (i) the affected Mortgaged
Property may be released pursuant to the terms of any partial release provisions
in the related Mortgage Loan documents (and such Mortgaged Property is, in fact,
released pursuant to such terms), (ii) the Mortgage Loan or the group of Crossed
Loans, as applicable, including the remaining Mortgaged Property(ies) fully
comply with and satisfy the terms, conditions and requirements set forth in the
Mortgage Loan documents, this Agreement, the related Mortgage Loan Purchase
Agreement and, in the case of a group of Crossed Loans, the Crossed Loan
Repurchase Criteria, (iii) in connection with such partial release, the related
Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan
Seller's expense) to the effect that the contemplated action will not, with
respect to the Upper-Tier REMIC or the Lower-Tier REMIC created hereunder,
endanger such status or result in the imposition of any tax and (iv) in
connection with such partial release, the related Mortgage Loan Seller delivers
or causes to be delivered to the Custodian original modifications to the
Mortgage prepared and executed in connection with such partial release.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans (other than Excess Interest), receipt of which is hereby
acknowledged, the Trustee (i) acknowledges the issuance of the Uncertificated
Lower-Tier Interests by the Paying Agent to the Depositor and (ii) acknowledges
the authentication and delivery of the Class LR Certificates by the Paying Agent
to or upon the order of the Depositor, and (iii) immediately thereafter, the
Trustee acknowledges that it has caused the Certificate Registrar to execute and
caused the Authenticating Agent to authenticate and to deliver to or upon the
order of the Depositor, in exchange for the Uncertificated Lower-Tier Interests,
the Regular Certificates (other than the Class A-3FL Certificates), the Class
A-3FL Regular Interest and the Class R Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates and the
Class A-3FL Regular Interest in authorized Denominations evidencing the entire
beneficial ownership of the Upper-Tier REMIC.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Class A-3FL
Regular Interest to the Trustee for the benefit of the respective Holders of the
Class A-3FL Certificates. The Trustee (i) acknowledges the assignment to it of
the Class A-3FL Regular Interest and acknowledges that it has executed the Swap
Contract, (ii) declares that it holds and will hold the same in trust for the
exclusive use and benefit of all present and future Holders of the Class A-3FL
Certificates and (iii) declares that it has caused the Certificate Registrar to
execute, and has caused the Authenticating Agent to authenticate and to deliver
to or upon the order of the Depositor, in exchange for, the Class A-3FL Regular
Interest and for entering into the Swap Contract, and the Depositor hereby
acknowledges the receipt by it or its designees of the Class A-3FL Certificates
in authorized Denominations. In exchange for the Excess Interest, the Trustee
acknowledges that it has caused the Certificate Registrar to execute and caused
the Authenticating Agent to authenticate and to deliver to or upon the order of
the Depositor the Class S Certificates in authorized Denominations.
Section 2.05 Grantor Trust Designations. The Class S Certificates
are hereby designated as undivided beneficial interests in the portion of the
Trust Fund consisting of Excess Interest, the Excess Interest Distribution
Account and proceeds thereof, which portion shall be treated as a grantor trust
within the meaning of subpart E, Part of subchapter J of the Code. The Class
A-3FL Certificates are hereby designated as undivided beneficial interests in
the portion of the Trust Fund consisting of the Class A-3FL Regular Interest,
the Swap Contract, the Floating Rate Account and the proceeds thereof, which
portion shall be treated as a grantor trust within the meaning of subpart E,
Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
Each of the Master Servicers and the Special Servicer shall diligently service
and administer the Mortgage Loans and the Companion Loans it is obligated to
service pursuant to this Agreement on behalf of the Trust and in the best
interests of and for the benefit of the Certificateholders and, in the case of
the Companion Loans, the related Companion Holders and the Trustee (as holder of
the Class A-3FL Regular Interest and the Uncertificated Lower Tier Interests),
as a collective whole, taking into account the subordinate nature of the
Companion Loans, as the case may be (as determined by the applicable Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and, with respect to each Loan Pair, the related Intercreditor
Agreement and the terms of the respective Mortgage Loans. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the applicable Master Servicer's and the Special Servicer's obligations,
responsibilities and authority with respect to the Mezz Cap AB Mortgage Loan are
limited by and subject to the terms of the related Mezz Cap AB Mortgage Loan
Intercreditor Agreement. The applicable Master Servicer (or, with respect to any
Specially Serviced Mortgage Loan, the Special Servicer) shall use reasonable
efforts consistent with the Servicing Standards to enforce the rights of the
Trust Fund (as holder of the Mezz Cap AB Mortgage Loan) under the related Mezz
Cap AB Mortgage Loan Intercreditor Agreement. Any cost and expenses associated
with such enforcement of the Trust Fund's rights against the Companion Holder
shall be an expense of the Trust Fund to the extent not otherwise provided in
the related Intercreditor Agreement. With respect to each Loan Pair, in the
event of a conflict between this Agreement and the related Intercreditor
Agreement, the related Intercreditor Agreement shall control; provided, in no
event shall the applicable Master Servicer or the Special Servicer take any
action in accordance with the terms of any Intercreditor Agreement that would
cause the applicable Master Servicer or the Special Servicer, as the case may
be, to violate the Servicing Standards or the REMIC Provisions.
To the extent consistent with the foregoing, each Master Servicer
and the Special Servicer shall service the Mortgage Loans in accordance with the
applicable Servicing Standards. The "Servicing Standards" means the General
Servicing Standard or the Capmark Servicing Standard, as applicable. The
"General Servicing Standard" means with respect to any Master Servicer (other
than Capmark) or Special Servicer, the servicing of the Mortgage Loans in
accordance with the higher of the following standards of care: (1) in the same
manner in which, and with the same care, skill, prudence and diligence with
which such Master Servicer or the Special Servicer, as the case may be, services
and administers similar mortgage loans for other third party portfolios and (2)
the same care, skill, prudence and diligence with which such Master Servicer or
the Special Servicer, as the case may be, services and administers similar
mortgage loans owned by such Master Servicer or the Special Servicer, as the
case may be, with a view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans or the Specially
Serviced Mortgage Loans, as applicable, and the best interests of the Trust and
the Certificateholders (and in the case of an AB Mortgage Loan, the related
Companion Holder, taking into account the subordinate nature of the subject
Companion Loan, as a collective whole), and with respect to the One & Two
Prudential Plaza Whole Loan, the holder of the One & Two Prudential Plaza A2
Note, taking into account the pari passu nature of such Companion Loan, as
determined by such Master Servicer or the Special Servicer, as the case may be,
in its reasonable judgment, in either case, giving due consideration to the
customary and usual standards of practice of prudent institutional, multifamily
and commercial mortgage loan servicers, but without regard to: (i) any
relationship that such Master Servicer, the Special Servicer or any Affiliate of
such Master Servicer or the Special Servicer may have with any Mortgagor or any
Affiliate of such Mortgagor, any Mortgage Loan Seller or any other parties to
this Agreement; (ii) the ownership of any Certificate or Companion Loan by such
Master Servicer, the Special Servicer or any Affiliate of such Master Servicer
or Special Servicer, as applicable; (iii) the adequacy of such Master Servicer's
or the Special Servicer's, as the case may be, right to receive compensation for
its services and reimbursement for its costs hereunder or with respect to any
particular transaction; (iv) the ownership, servicing or management for others
of any other mortgage loans or mortgaged properties by such Master Servicer or
Special Servicer; (v) any obligation of such Master Servicer or any of its
affiliates (in their capacity as a Mortgage Loan Seller) to cure a breach of a
representation or warranty or document defect with respect to, or repurchase or
substitute for the Mortgage Loan; (vi) any other debt such Master Servicer or
the Special Servicer or any of its Affiliates has extended to any Mortgagor or
any of its Affiliates; (vii) any obligation of such Master Servicer or any of
its Affiliates to make Advances; and (viii) any option to purchase any Mortgage
Loan or Companion Loan by either Master Servicer or the Special Servicer or any
of their Affiliates.
The "Capmark Servicing Standard" means, with respect to Capmark, the
servicing of the Mortgage Loans in accordance with the higher of the following
standards of care: (1) with the same care, skill and diligence as is normal and
usual in its mortgage servicing activities on behalf of third parties or on
behalf of itself, whichever is higher, with respect to mortgage loans that are
comparable to the Mortgage Loans and (2) with a view to the timely collection of
all principal and interest and other amounts due and payable under the Mortgage
Loans or, if applicable, the Companion Loans and the AB Mortgage Loans as a
collective whole, taking into account the subordinate nature of the Companion
Loans, as applicable, and without regard to: (1) any relationship that Master
Servicer No. 1 or any Affiliate of Master Servicer No. 1 may have with any
Mortgagor; (2) the ownership of any Certificate or, if applicable, mezzanine
loan or Companion Loan, by Master Servicer No. 1 or any Affiliate of Master
Servicer No. 1; (3) Master Servicer No. 1's obligation to make Advances; and (4)
the adequacy of Master Servicer No. 1's right to receive compensation payable to
it and reimbursement for its costs hereunder or with respect to any particular
transaction.
Without limiting the foregoing, subject to Section 3.21, (1) Master
Servicer No. 1 shall be obligated to service and administer all Group A Mortgage
Loans which, in each case, do not constitute Specially Serviced Mortgage Loans,
(2) Master Servicer No. 2 shall be obligated to service and administer all Group
B Mortgage Loans which, in each case, do not constitute Specially Serviced
Mortgage Loans and (3) the Special Servicer shall be obligated to service and
administer (i) any Mortgage Loans and Companion Loans as to which a Servicing
Transfer Event has occurred and is continuing (the "Specially Serviced Mortgage
Loans") and (ii) any REO Properties; provided, that the applicable Master
Servicer shall continue to receive payments and make all calculations, and
prepare, or cause to be prepared, all reports, required hereunder with respect
to the Specially Serviced Mortgage Loans, except for the reports specified
herein as prepared by the Special Servicer, as if no Servicing Transfer Event
had occurred and with respect to the REO Properties (and the related REO Loans)
as if no REO Acquisition had occurred, and to render such services with respect
to such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided further, however, that the applicable Master
Servicer shall not be liable for failure to comply with such duties insofar as
such failure results from a failure of the Special Servicer to provide
sufficient information to the applicable Master Servicer to comply with such
duties or failure by the Special Servicer to otherwise comply with its
obligations hereunder. Neither Master Servicer will have any responsibility for
the performance by the Special Servicer of its duties under this Agreement or
the performance by the other Master Servicer of its duties under this Agreement.
Each Mortgage Loan or Companion Loan that becomes a Specially Serviced Mortgage
Loan shall continue as such until satisfaction of the conditions specified in
Section 3.21(a). Without limiting the foregoing, subject to Section 3.21, the
applicable Master Servicer shall be obligated to service and administer all
related Mortgage Loans and Companion Loans, which are not Specially Serviced
Mortgage Loans. The Special Servicer shall make the inspections, use its
reasonable efforts to collect the statements and forward to the applicable
Master Servicer the reports in respect of the related Mortgaged Properties with
respect to Specially Serviced Mortgage Loans in accordance with Section 3.12.
After notification to the applicable Master Servicer, the Special Servicer may
contact the Mortgagor of any Non-Specially Serviced Mortgage Loan if efforts by
the applicable Master Servicer to collect required financial information have
been unsuccessful or any other issues remain unresolved. Such contact shall be
coordinated through and with the cooperation of the applicable Master Servicer.
No provision herein contained shall be construed as an express or implied
guarantee by the Master Servicers or the Special Servicer of the collectability
or recoverability of payments on the Mortgage Loans or shall be construed to
impair or adversely affect any rights or benefits provided by this Agreement to
the Master Servicers or the Special Servicer (including with respect to
Servicing Fees, Special Servicing Fees or the right to be reimbursed for
Advances and interest accrued thereon). Any provision in this Agreement for any
Advance by the applicable Master Servicer or the Trustee is intended solely to
provide liquidity for the benefit of the Certificateholders and not as credit
support or otherwise to impose on any such Person the risk of loss with respect
to one or more of the Mortgage Loans. No provision hereof shall be construed to
impose liability on the Master Servicers or the Special Servicer for the reason
that any recovery to the Certificateholders in respect of a Mortgage Loan at any
time after a determination of present value recovery is less than the amount
reflected in such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements (and intercreditor agreements
entered into after the Closing Date with respect to any Mortgage Loan in
connection with mezzanine debt permitted under the related Mortgage Loan
documents), and applicable law, the Master Servicers and the Special Servicer
each shall have full power and authority, acting alone or, in the case of any
Master Servicer, subject to Section 3.22, through one or more Sub-Servicers, to
do or cause to be done any and all things in connection with such servicing and
administration for which it is responsible which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicers and the Special Servicer, in its own name (or in the name of the
Trustee and, if applicable, the Companion Holder), is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan (and, with respect to a Companion Loan, the Companion Holder) it is
obligated to service under this Agreement: (i) any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) subject to Sections 3.08 and 3.20, any and all modifications, waivers,
amendments or consents to, under or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, pledge agreements and other documents in connection with a
defeasance, or of partial or full release or discharge, and all other comparable
instruments; provided, with respect to the One & Two Prudential Plaza Mortgage
Loan, the Special Servicer, and not the applicable Master Servicer, shall be
authorized and empowered to process, execute and deliver any such instruments or
documents that relate to defeasance, releases or assumptions. Subject to Section
3.10, the Trustee shall furnish, or cause to be furnished, to the Master
Servicers or the Special Servicer any powers of attorney and other documents
necessary or appropriate to enable the Master Servicers or the Special Servicer,
as the case may be, to carry out its servicing and administrative duties
hereunder; provided, however, that the Trustee shall not be held liable for any
negligence with respect to, or misuse of, any such power of attorney by the
Master Servicers or the Special Servicer. Notwithstanding anything contained
herein to the contrary, each Master Servicer or the Special Servicer, as the
case may be, shall not, without the Trustee's written consent: (i) initiate any
action, suit or proceeding solely under the Trustee's name without indicating
such Master Servicer's or the Special Servicer's, as the case may be,
representative capacity or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be required to be registered to do business
in any state.
(c) To the extent each Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action which requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), such Master Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents or Companion Loan documents require the
Mortgagor to bear the costs of any confirmation of the Rating Agencies that an
action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), the applicable Master Servicer shall not waive the requirement that
such costs and expenses be borne by the related Mortgagor. To the extent that
the terms of the related Mortgage Loan documents or Companion Loan documents are
silent as to who bears the costs of any confirmation of the Rating Agencies that
an action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), the applicable Master Servicer shall use reasonable efforts to have
the Mortgagor bear such costs and expenses. Each Master Servicer shall not be
responsible for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Master Servicers and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) Each Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof and (ii) the Closing Date, (A) the applicable Master Servicer
shall notify, or cause the applicable Mortgage Loan Seller to notify each
provider of a letter of credit for each Mortgage Loan identified as having a
letter of credit on the Mortgage Loan Schedule, that the Trust (in care of the
applicable Master Servicer) for the benefit of the Certificateholders and any
related Companion Holders shall be the beneficiary under each such letter of
credit and (B) the applicable Master Servicer shall notify each lessor under a
Ground Lease for each Mortgage Loan identified as subject to a leasehold
interest on the Mortgage Loan Schedule, that the applicable Master Servicer or
the Special Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders. If the Mortgage Loan documents do not require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, then the applicable Mortgage Loan Seller shall pay
such costs and expenses. If the Mortgage Loan documents require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, and such Mortgagor fails to pay such costs and
expenses after the applicable Master Servicer has exercised reasonable efforts
to collect such costs and expenses from such Mortgagor, then the applicable
Master Servicer shall give the applicable Mortgage Loan Seller notice of such
failure and the amount of costs and expenses, and such Mortgage Loan Seller
shall pay such costs and expenses. The costs and expenses of any modifications
to Ground Leases shall be paid by the related Mortgagor. Neither the Master
Servicers nor the Special Servicer shall have any liability for the failure of
any Mortgage Loan Seller to perform its obligations under the related Mortgage
Loan Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicers (or the Trustee, as applicable) make a Servicing
Advance with respect to any Companion Loan to the extent the related Mortgage
Loan has been paid in full or is no longer included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding Mortgage Loan or any related
REO Property is part of the Trust Fund or for such longer period as any amounts
payable by the related Companion Holder to or for the benefit of the Trust or
any party hereto in accordance with the related Intercreditor Agreement remain
due and owing.
(i) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any AB Mortgage Loan, it shall, subject
to Section 3.21, enforce, on behalf of the Trust, subject to the Servicing
Standards and to the extent the Special Servicer determines such action is in
the best interests of the Trust Fund, the rights that the Trustee, on behalf of
the Trust, as holder of each AB Mortgage Loan is entitled to exercise under the
related Intercreditor Agreement. The costs and expenses incurred by the Special
Servicer in connection with such enforcement shall be paid as a Servicing
Advance.
(j) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the servicing and administration of the One &
Two Prudential Plaza Whole Loan shall continue hereunder (without any further
obligation to make P&I Advances) even if the One & Two Prudential Plaza Mortgage
Loan is no longer part of the Trust Fund, until such time as a separate
servicing agreement is entered into in accordance with the One & Two Prudential
Plaza Intercreditor Agreement (it being acknowledged that neither the applicable
Master Servicer nor the Special Servicer shall be obligated under a separate
agreement to which it is not a party). At such time as a separate servicing
agreement is entered into, all amounts due to such Master Servicer or Special
Servicer, as applicable, including advances and interest thereon, for the period
that the One & Two Prudential Plaza Whole Loan was not part of the Trust Fund,
but was serviced by Master Servicer No. 2 or the Special Servicer, as applicable
shall be paid to Master Servicer No. 2 or the Special Servicer upon the
execution of a separate servicing agreement by the holder of such One & Two
Prudential Plaza Whole Loan or as otherwise agreed to by such holder and Master
Servicer No. 2 or the Special Servicer, as applicable.
(k) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the applicable Master Servicer's obligations
and responsibilities hereunder and such Master Servicer's authority with respect
to the One & Two Prudential Plaza Mortgage Loan are limited by and subject to
the terms of the One & Two Prudential Plaza Intercreditor Agreement. The
applicable Master Servicer (or, if the One & Two Prudential Plaza Mortgage Loan
becomes a Specially Serviced Loan, the Special Servicer) shall use reasonable
efforts consistent with the Servicing Standards to enforce the rights of the
Trust Fund (as holder of the One & Two Prudential Plaza Mortgage Loan) under the
One & Two Prudential Plaza Intercreditor Agreement. In the event of any conflict
between this Agreement and the One & Two Prudential Plaza Intercreditor
Agreement, the provisions of this Agreement shall control.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
applicable Master Servicers and the Special Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans and Companion Loans (subject to the right of certain Companion
Holders to receive payments directly from the related Mortgagor pursuant to the
related Intercreditor Agreement) it is obligated to service hereunder, and shall
follow such collection procedures as are consistent with this Agreement
(including, without limitation, the Servicing Standards), provided that with
respect to the Mortgage Loans that have Anticipated Repayment Dates, so long as
the related Mortgagor is in compliance with each provision of the related
Mortgage Loan documents, the applicable Master Servicer and the Special
Servicer, shall not take any enforcement action with respect to the failure of
the related Mortgagor to make any payment of Excess Interest, other than
requests for collection, until the maturity date of the related Mortgage Loan or
the outstanding principal balance of such Mortgage Loan has been paid in full;
provided that the Master Servicer or Special Servicer, as the case may be, may
take action to enforce the Trust Fund's right to apply excess cash flow to
principal in accordance with the terms of the Mortgage Loan documents. The
applicable Master Servicer or the Special Servicer, as applicable, may in its
discretion waive any Penalty Charge (other than a Penalty Charge payable with
respect to the Companion Loans if the related Intercreditor Agreement provides
that such Penalty Charge may not be waived without the consent of the related
Companion Loan Holder or the holder of such One & Two Prudential Plaza A2 Note,
as applicable, after the securitization of the One & Two Prudential Plaza A2
Note) in connection with any delinquent payment on a Mortgage Loan or Companion
Loan it is obligated to service hereunder two times during any period of
twenty-four consecutive months with respect to any Mortgage Loan or Companion
Loan; provided, that the applicable Master Servicer or the Special Servicer, as
applicable, may in its discretion waive any Penalty Charge (other than a Penalty
Charge payable with respect to the Companion Loans if the related Intercreditor
Agreement provides that such Penalty Charge may not be waived without the
consent of the related Companion Loan Holder or the holder of such One & Two
Prudential Plaza A2 Note, as applicable, after the securitization of the One &
Two Prudential Plaza A2 Note) in connection with any delinquent payment on a
Mortgage Loan or Companion Loan one additional time in such 24-month period so
long as no Advance or additional Trust Fund expense has been incurred and
remains unreimbursed to the Trust with respect to such Mortgage Loan or
Companion Loan. Any additional waivers during such 24-month period with respect
to such Mortgage Loan may be made only after the applicable Master Servicer or
Special Servicer, as the case may be, has given notice of a proposed waiver to
the Directing Certificateholder and the Directing Certificateholder has
consented to such additional waiver (provided, that if the applicable Master
Servicer or Special Servicer, as the case may be, fails to receive a response to
such notice from the Directing Certificateholder in writing within five (5) days
of giving such notice, then the Directing Certificateholder shall be deemed to
have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to each Loan Pair, the
related Intercreditor Agreement) and, in the absence of such express provisions,
such payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied (after reimbursement first to the Trustee
and second to the applicable Master Servicer for any related outstanding
Advances (including Workout Delayed Reimbursement Amounts that have not been
reimbursed to the applicable Master Servicer) and interest thereon as provided
herein and unpaid servicing compensation, Liquidation Expenses and related
additional Trust Fund expenses): first, as a recovery of accrued and unpaid
interest on such Mortgage Loan or Companion Loan, as applicable, at the related
Mortgage Rate in effect from time to time to but not including the Due Date in
the Due Period of receipt; second, as a recovery of Unliquidated Advances, third
as a recovery of principal of such Mortgage Loan then due and owing, in each
case, that were paid from collections on the Mortgage Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso in the definition of "Principal Distribution Amount", "Loan Group
1 Principal Distribution Amount" or "Loan Group 2 Principal Distribution
Amount"; fourth, as a recovery of Nonrecoverable Advances; fifth, in accordance
with the Servicing Standards, as a recovery of any other amounts due and owing
on such Mortgage Loan or Companion Loan, as applicable, including, without
limitation, Penalty Charges, Yield Maintenance Charges and Excess Interest; and
sixth, as a recovery of principal of such Mortgage Loan or Companion Loan, as
applicable, to the extent of its entire unpaid principal balance.
Notwithstanding the preceding, such provisions shall not be deemed to affect the
priority of distributions of payments. To the extent that such amounts are paid
by a party other than a Mortgagor, such amounts shall be deemed to have been
paid in respect of a purchase of all or part of the Mortgaged Property (in the
case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then
paid by the Mortgagor under the Mortgage Loan or Companion Loan, as applicable,
in accordance with the preceding sentence. Amounts collected on any REO Loan
shall be deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Loan Pair(s), the related Companion Loan and
Intercreditor Agreement) and applicable law, the applicable Master Servicer
shall apply all Insurance and Condemnation Proceeds it receives on a day other
than the Due Date to amounts due and owing under the related Mortgage Loan or
Companion Loan as if such Insurance and Condemnation Proceeds were received on
the Due Date immediately succeeding the month in which such Insurance and
Condemnation Proceeds were received.
(d) In the event that the applicable Master Servicer or Special
Servicer receives Excess Interest prior to the Determination Date for any Due
Period, or receives notice from the related Mortgagor that such Master Servicer
or Special Servicer will be receiving Excess Interest prior to the Determination
Date for any Due Period, such Master Servicer or Special Servicer, as the case
may be, will promptly notify the Paying Agent. None of the Master Servicers, the
Special Servicer or the Paying Agent shall be responsible for any failure of the
related Mortgagor to pay any such Excess Interest. The preceding statements
shall not, however, be construed to limit the provisions of Section 3.02(a).
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the applicable Master Servicer shall, to the extent consistent
with the Servicing Standards, hold such escrows, letters of credit and proceeds
thereof as additional collateral and not apply such items to reduce the
principal balance of such Mortgage Loan unless otherwise required to do so
pursuant to the applicable Mortgage Loan documents, applicable law or court
order.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) Each Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents. Any
Servicing Accounts related to the One & Two Prudential Plaza Whole Loan shall be
held for the benefit of the Certificateholders and the One & Two Prudential
Plaza A2 Noteholder, but this shall not be construed to modify their respective
interests therein as set forth in the One & Two Prudential Plaza Intercreditor
Agreement. Amounts on deposit in Servicing Accounts may only be invested in
accordance with the terms of the related Mortgage Loan documents or in Permitted
Investments in accordance with the provisions of Section 3.06. Servicing
Accounts shall be Eligible Accounts to the extent permitted by the terms of the
related Mortgage Loan documents. Withdrawals of amounts so deposited from a
Servicing Account may be made only to: (i) effect payment of items for which
Escrow Payments were collected and comparable items; (ii) reimburse the Trustee,
and then the applicable Master Servicer for any Servicing Advances; (iii) refund
to Mortgagors any sums as may be determined to be overages; (iv) pay interest to
Mortgagors on balances in the Servicing Account, if required by applicable law
or the terms of the related Mortgage Loan or Companion Loan and as described
below or, if not so required, to the applicable Master Servicer; (v) after the
occurrence of an event of default under the related Mortgage Loan or Companion
Loan, apply amounts to the indebtedness under the applicable Mortgage Loan or
Companion Loan; (vi) withdraw amounts deposited in error; (vii) pay Penalty
Charges to the extent permitted by the related Mortgage Loan documents; or
(viii) clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. As part of its servicing duties, each
Master Servicer, with respect to the Mortgage Loans it is obligated to service
hereunder, shall pay or cause to be paid to the Mortgagors interest on funds in
Servicing Accounts, to the extent required by law or the terms of the related
Mortgage Loan or Companion Loan; provided, however, that in no event shall such
Master Servicer be required to remit to any Mortgagor any amounts in excess of
actual net investment income or funds in the related Servicing Account. If
allowed by the related Mortgage Loan documents and applicable law, the
applicable Master Servicer may charge the related Mortgagor an administrative
fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans, and the
applicable Master Servicer, in the case of all other Mortgage Loans (and each
Companion Loan) that it is responsible for servicing hereunder, shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof. The Special Servicer, in the case of REO Loans, and
the applicable Master Servicer, in the case of all other Mortgage Loans and
Companion Loans that it is responsible for servicing hereunder, shall use
reasonable efforts consistent with the Servicing Standards to obtain, from time
to time, all bills for the payment of such items (including renewal premiums)
and shall effect payment thereof from the REO Account or by the applicable
Master Servicer as Servicing Advances prior to the applicable penalty or
termination date and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items, employing for such purpose Escrow Payments (which
shall be so applied by the Master Servicer at the written direction of the
Special Servicer in the case of REO Loans) as allowed under the terms of the
related Mortgage Loan or Companion Loan. The applicable Master Servicer shall
service and administer any reserve accounts (including monitoring, maintaining
or changing the amounts of required escrows) in accordance with the terms of
such Mortgage Loan and the Servicing Standards. To the extent that a Mortgage
Loan (or a Companion Loan) does not require a Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of REO Loans,
and the applicable Master Servicer, in the case of all other Mortgage Loans and
Companion Loans that it is responsible for servicing hereunder, shall use
reasonable efforts consistent with the Servicing Standards to cause the
Mortgagor to comply with its obligation to make payments in respect of such
items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans and Loan Pairs that it is responsible for servicing hereunder, the
applicable Master Servicer shall advance all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent Escrow Payments collected from the related Mortgagor (or related REO
Revenues, if applicable) are insufficient to pay such item when due and the
related Mortgagor has failed to pay such item on a timely basis, and provided,
however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance and provided, further, however, that with
respect to the payment of taxes and assessments, insurance premiums and rents
under any Ground Lease, the applicable Master Servicer shall not be required to
make such advance until the earlier of (1) five Business Days after such Master
Servicer, the Special Servicer or the Trustee, as applicable, has received
confirmation that such item has not been paid or (2) the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments or after which a lapse in insurance coverage or a breach under any
Ground Lease would occur as a result of a failure to pay such taxes,
assessments, premiums or payments. The Special Servicer shall give the
applicable Master Servicer and the Trustee no less than five Business Days'
written (facsimile or electronic) notice before the date on which such Master
Servicer is requested to make any Servicing Advance with respect to a given
Specially Serviced Mortgage Loan or REO Property; provided, however, that only
two Business Days' written (facsimile or electronic) notice shall be required in
respect of Servicing Advances required to be made on an emergency or urgent
basis; provided, further, that the Special Servicer shall not be entitled to
make such a request (other than for Servicing Advances required to be made on an
urgent or emergency basis) more frequently than once per calendar month
(although such request may relate to more than one Servicing Advance). The
applicable Master Servicer may pay the aggregate amount of such Servicing
Advances listed on a monthly request to the Special Servicer, in which case the
Special Servicer shall remit such Servicing Advances to the ultimate payees. In
addition, the Special Servicer shall provide the applicable Master Servicer and
the Trustee with such information in its possession as such Master Servicer or
the Trustee, as the case may be, may reasonably request to enable such Master
Servicer or the Trustee, as applicable, to determine whether a requested
Servicing Advance would constitute a Nonrecoverable Advance. Any request by the
Special Servicer that any Master Servicer make a Servicing Advance shall be
deemed to be a determination by the Special Servicer that such requested
Servicing Advance is not a Nonrecoverable Servicing Advance, and such Master
Servicer shall be entitled to conclusively rely on such determination, provided
that the determination shall not be binding on such Master Servicer or Trustee.
On the first Business Day after the Determination Date for the related
Distribution Date, the Special Servicer shall report to the applicable Master
Servicer if the Special Servicer determines any Servicing Advance previously
made by such Master Servicer with respect to a Specially Serviced Mortgage Loan
or REO Loan is a Nonrecoverable Servicing Advance. Such Master Servicer shall be
entitled to conclusively rely on such a determination, and such determination
shall be binding upon such Master Servicer, but shall in no way limit the
ability of such Master Servicer, in the absence of such determination, to make
its own determination that any Advance is a Nonrecoverable Advance. All such
Advances shall be reimbursable in the first instance from related collections
from the Mortgagors and further as provided in Section 3.05. No costs incurred
by the applicable Master Servicer or the Special Servicer in effecting the
payment of real estate taxes, assessments and, if applicable, ground rents on or
in respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, the Paying Agent's calculation of monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Mortgage Loans or the Companion Loans, notwithstanding that the terms of such
Mortgage Loans or the Companion Loans so permit. If the applicable Master
Servicer fails to make any required Servicing Advance as and when due (including
any applicable cure periods), to the extent the Trustee has actual knowledge of
such failure, the Trustee shall make such Servicing Advance pursuant to Section
7.05. Notwithstanding anything herein to the contrary, no Servicing Advance
shall be required hereunder if such Servicing Advance would, if made, constitute
a Nonrecoverable Servicing Advance. In addition, the applicable Master Servicer
shall consider Unliquidated Advances in respect of prior Servicing Advances for
purposes of nonrecoverability determinations. The Special Servicer shall have no
obligation under this Agreement to make any Servicing Advances.
Notwithstanding anything to the contrary contained in this Section
3.03(c), any Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the applicable Certificate Account (which shall be deemed first made from
amounts distributable as principal and then from all other amounts comprising
general collections) to pay for certain expenses set forth below notwithstanding
that such Master Servicer (or Special Servicer, as applicable) has determined
that a Servicing Advance with respect to such expenditure would be a
Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced
Mortgage Loans or REO Loans, the Special Servicer has notified such Master
Servicer to not make such expenditure), where making such expenditure would
prevent (i) the related Mortgaged Property from being uninsured or being sold at
a tax sale or (ii) any event that would cause a loss of the priority of the lien
of the related Mortgage, or the loss of any security for the related Mortgage
Loan; provided that in each instance, such Master Servicer or the Special
Servicer, as applicable, determines in accordance with the Servicing Standards
(as evidenced by an Officer's Certificate delivered to the Trustee) that making
such expenditure is in the best interest of the Certificateholders (and, if
applicable the Companion Holders), all as a collective whole. Each Master
Servicer or Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of Section 3.19(c).
(d) In connection with its recovery of any Servicing Advance out of
the applicable Certificate Account pursuant to Section 3.05(a), the Trustee and
then the applicable Master Servicer, as the case may be, shall be entitled to
receive, out of any amounts then on deposit in such Certificate Account interest
at the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance from the date made to, but not including, the date of
reimbursement. If there are insufficient funds to reimburse the Trustee or a
Master Servicer interest at the Reimbursement Rate out of the applicable
Certificate Account, such party shall be entitled to receive the amounts
referred to in this Section 3.03(d) out of amounts then on deposit in the other
Certificate Account. Subject to Section 3.19(c), each Master Servicer shall
reimburse itself or the Trustee, as the case may be, for any outstanding
Servicing Advance as soon as practically possible after funds available for such
purpose are deposited in the applicable Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
applicable Master Servicer shall request from the Mortgagor written confirmation
thereof within a reasonable time after the later of the Closing Date and the
date as of which such plan is required to be established or completed. To the
extent any repairs, capital improvements, actions or remediations are required
to have been taken or completed pursuant to the terms of the Mortgage Loan, the
applicable Master Servicer shall request from the Mortgagor written confirmation
of such actions and remediations within a reasonable time after the later of the
Closing Date and the date as of which such action or remediations are required
to be or to have been taken or completed. To the extent a Mortgagor shall fail
to promptly respond to any inquiry described in this Section 3.03(e), the
applicable Master Servicer shall report any such failure to the Special Servicer
within a reasonable time after the later of the Closing Date and the date as of
which such actions or remediations are required to be or to have been taken or
completed.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account, the Gain-on-Sale Reserve Account, the Excess Interest Distribution
Account and the Floating Rate Account. (a) Each Master Servicer shall establish
and maintain, or cause to be established and maintained, a Certificate Account
in which such Master Servicer shall deposit or cause to be deposited on a daily
basis and in no event later than the Business Day following receipt of available
funds (in the case of payments by Mortgagors or other collections on the
Mortgage Loans or Companion Loans), except as otherwise specifically provided
herein, the following payments and collections received or made by or on behalf
of it subsequent to the Cut-off Date (other than in respect of principal and
interest on the Mortgage Loans or Companion Loans due and payable on or before
the Cut-off Date, which payments shall be delivered promptly to the appropriate
Mortgage Loan Seller or its designee and other than any amounts received from
Mortgagors which are received in connection with the purchase of defeasance
collateral), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than (i) Liquidation
Proceeds that are received in connection with the purchase by the
applicable Master Servicer, the Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class LR Certificates of all the
Mortgage Loans and any REO Properties in the Trust Fund and that are to be
deposited in the Lower-Tier Distribution Account pursuant to Section 9.01
and (ii) if applicable, Liquidation Proceeds that are received in
connection with the purchase of a Companion Loan from a securitization by
the related mortgage loan seller, which shall be paid directly to the
servicer of such securitization) together with any recovery of
Unliquidated Advances in respect of the related Mortgage Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the applicable
Certificate Account; and
(vii) any amounts required to be deposited by the applicable Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses resulting from a deductible clause in a blanket hazard or
master single interest policy.
Notwithstanding the foregoing requirements, each Master Servicer
need not deposit into its related Certificate Account any amount that such
Master Servicer would be authorized to withdraw immediately from such account in
accordance with the terms of Section 3.05 and shall be entitled to instead
immediately pay such amount directly to the Person(s) entitled thereto;
provided, that such amounts shall be applied in accordance with the terms hereof
and shall be reported as if deposited in such Certificate Account and then
withdrawn.
The foregoing requirements for deposit in any Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
applicable Master Servicer in its related Certificate Account. If the applicable
Master Servicer shall deposit in its related Certificate Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Certificate Account, any provision herein to the contrary notwithstanding.
Assumption, extension and modification fees actually received from Mortgagors on
Specially Serviced Mortgage Loans shall be promptly delivered to the Special
Servicer as additional servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the applicable
Master Servicer for deposit into the applicable Certificate Account, in
accordance with this Section 3.04(a). Any such amounts received by the Special
Servicer with respect to an REO Property shall be deposited by the Special
Servicer into the REO Account and remitted to the applicable Master Servicer for
deposit into the Certificate Account, pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse without recourse or warranty such check to the
order of the applicable Master Servicer and shall promptly deliver any such
check to such Master Servicer by overnight courier.
Funds in the Certificate Accounts may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account for Master Servicer No. 1 shall be located at the
offices of Escrow Bank in Midvale, Utah. As of the Closing Date, the Certificate
Account for Master Servicer No. 2 shall be located at the offices of Wachovia
Bank, National Association. Each Master Servicer shall give notice to the
Trustee, the Special Servicer, the Paying Agent and the Depositor of the new
location of its Certificate Account prior to any change thereof.
(b) The Paying Agent, on behalf of the Trustee, shall establish and
maintain the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Interest Reserve Account,
the Floating Rate Account and the Gain-on-Sale Reserve Account in trust for the
benefit of the Certificateholders (and the Trustee as holder of the Class A-3FL
Regular Interest and the Uncertificated Lower-Tier Interests). The applicable
Master Servicer shall deliver to the Paying Agent each month, on or before the
P&I Advance Date therein, for deposit in the Lower-Tier Distribution Account,
that portion of the Available Distribution Amount attributable to the Mortgage
Loans it is obligated to service hereunder (in each case, calculated without
regard to clauses (a)(iv), (a)(viii), (c) and (d) of the definition of Available
Distribution Amount) for the related Distribution Date and in the Excess
Interest Distribution Account all Excess Interest for the related Distribution
Date then on deposit in the applicable Certificate Account after giving effect
to withdrawals of funds pursuant to Section 3.05(a)(ii)-(xx).
With respect to the Companion Loans, each Companion Paying Agent
shall establish and maintain an account for each Companion Loan, each of which
may be a subaccount of the applicable Certificate Account, for distributions to
each Companion Holder (each, a "Companion Distribution Account") to be held for
the benefit of the related Companion Holder and shall, promptly upon receipt,
deposit in the Companion Distribution Account any and all amounts received by
the Companion Paying Agent that are required by the terms of this Agreement or
the applicable Intercreditor Agreement to be deposited therein. Each Master
Servicer shall deliver to the applicable Companion Paying Agent each month, on
or before the P&I Advance Date therein, for deposit in the Companion
Distribution Account, an aggregate amount of immediately available funds, to the
extent of available funds, equal to the amount to be distributed to the related
Companion Holder pursuant to the terms of this Agreement and the related
Intercreditor Agreement.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account, the Interest Reserve Account, the Floating Rate Account and the
Companion Distribution Account may be subaccounts of a single Eligible Account,
which shall be maintained as a segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, each
Master Servicer shall, as and when required hereunder, deliver to the Paying
Agent for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.19 as Compensating Interest Payments in connection
with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by such Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by such Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be deposited
in the applicable Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the applicable
Master Servicer shall not have delivered to the Paying Agent for deposit in the
Lower-Tier Distribution Account and the Excess Interest Distribution Account the
amounts required to be deposited therein pursuant to the provisions of this
Agreement (including any P&I Advance pursuant to Section 4.03(a) hereof), such
Master Servicer shall pay the Paying Agent interest on such late payment at the
Prime Rate from and including the date such payment was required to be made
(without regard to any grace period set forth in Section 7.01(a)(i)) until (but
not including) the date such late payment is received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Excess Interest Distribution Account, as applicable,
any and all amounts received by the Paying Agent that are required by the terms
of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount and the amount of any Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively, and then immediately be deemed to withdraw from the
Upper-Tier Distribution Account and deposit in the Floating Rate Account an
aggregate amount of immediately available funds equal to the Class A-3FL
Available Funds and any Yield Maintenance Charges allocated to the Class A-3FL
Regular Interest for such Distribution Date as specified in Sections 4.01(d)(i)
and 4.01(k).
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Floating Rate
Account, the Upper-Tier Distribution Account and the Lower-Tier Distribution
Account shall remain uninvested. As of the Closing Date, the Interest Reserve
Account, the Floating Rate Account, the Upper-Tier Distribution Account and the
Lower-Tier Distribution Account shall be located at the offices of the Paying
Agent. The Paying Agent shall give notice to the Trustee, the Master Servicers
and the Depositor of the location of the Interest Reserve Account, the
Upper-Tier Distribution Account, the Lower-Tier Distribution Account, the
Floating Rate Account, the Excess Interest Distribution Account and, if
established, the Gain-on-Sale Reserve Account, and of the proposed location of
such accounts prior to any change thereof.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the applicable Master Servicer or Special Servicer pursuant to Section
3.02(d), the Paying Agent, on behalf of the Certificateholders, shall establish
and maintain the Excess Interest Distribution Account in the name of the Paying
Agent in trust for the benefit of the Class S Certificateholders. The Excess
Interest Distribution Account shall be established and maintained as an Eligible
Account (or as a subaccount of an Eligible Account). Prior to the applicable
Distribution Date, each Master Servicer shall remit to the Paying Agent for
deposit in the Excess Interest Distribution Account an amount equal to the
Excess Interest received prior to the Determination Date for the applicable Due
Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent. Funds in the Gain-on-Sale Reserve Account
shall be held uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the applicable Companion Paying Agent for deposit into the applicable
Companion Distribution Account.
(e) On or before the Closing Date, the Paying Agent shall establish
and maintain the Floating Rate Account in trust for the benefit of the Class
A-3FL Certificateholders. The Floating Rate Account shall (i) at all times be an
Eligible Account and (ii) relate solely to the Class A-3FL Certificates. The
Paying Agent shall deposit into the Floating Rate Account all amounts received
in respect of distributions on the Class A-3FL Regular Interest as specified in
Section 3.04(b), and shall immediately deposit into the Floating Rate Account
all amounts received under the Swap Contract.
Section 3.05 Permitted Withdrawals from the Certificate Accounts,
the Distribution Accounts, the Companion Distribution Account, the Excess
Interest Distribution and the Floating Rate Account. (a) Each Master Servicer
may, from time to time, make withdrawals from its related Certificate Account
for any of the following purposes (without duplication):
(i) (A) no later than 4:00 p.m. New York City time on each P&I
Advance Date, to remit to the Paying Agent for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the
amounts required to be remitted pursuant to the first paragraph of Section
3.04(b) and Section 3.04(c) or that may be applied to make P&I Advances
pursuant to Section 4.03(a) and (B) pursuant to the second paragraph of
Section 3.04(b), to remit to the applicable Companion Paying Agent for
deposit in the applicable Companion Distribution Account the amounts
required to be so deposited on the date specified in the related
Intercreditor Agreement with respect to the related Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan (to the extent permitted in the related
Intercreditor Agreement), Specially Serviced Mortgage Loan and REO Loan,
as applicable, such Master Servicer's rights to payment of Servicing Fees
pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan,
as applicable, and any expense incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of related REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that with
respect to the One & Two Prudential Plaza Whole Loan, such expenses shall
be reimbursed pro rata from the One & Two Prudential Plaza Mortgage Loan
and the One & Two Prudential Plaza A2 Note subject to, and in accordance
with, the One & Two Prudential Plaza Intercreditor Agreement, prior to
being payable out of general collections);
(iii) to reimburse the Trustee and itself or the other Master
Servicer (if amounts in such other Master Servicer's Certificate Account
are not sufficient for such reimbursement), as applicable (in that order),
for xxxxxxxxxxxx X&X Advances, the applicable Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections of interest
(net of the related Servicing Fees) on and principal of the particular
Mortgage Loans and REO Loans with respect to which such P&I Advances were
made; provided, however, that if such P&I Advance becomes a
Workout-Delayed Reimbursement Amount, then such P&I Advance may
additionally thereafter be reimbursed from the portion of general
collections and recoveries on or in respect of the Mortgage Loans and REO
Properties on deposit in its Certificate Account (and from funds in the
other Certificate Account) from time to time that represent collections or
recoveries of principal to the extent provided in clause (v) below (to be
allocated between the Loan Groups as set forth in the last paragraph of
Section 3.05 (a)) or, in the circumstances specified in Section 3.19(c),
from general collections (provided that with respect to the One & Two
Prudential Plaza Mortgage Loan, reimbursement of P&I Advances shall be
made only from amounts collected with respect to the One & Two Prudential
Plaza Mortgage Loan (and not from any amounts collected with respect to
the One & Two Prudential Plaza A2 Note) prior to reimbursement from other
funds unrelated to the One & Two Prudential Plaza Whole Loan on deposit in
the Certificate Account);
(iv) to reimburse the Trustee and itself or the other Master
Servicer (if amounts in such other Master Servicer's Certificate Account
are not sufficient for such reimbursement), as applicable (in that order),
for unreimbursed Servicing Advances, the applicable Master Servicer's or
the Trustee's respective rights to receive payment pursuant to this clause
(iv) with respect to any Mortgage Loan, Companion Loan or REO Property
being limited to, as applicable, related payments, Liquidation Proceeds,
Insurance and Condemnation Proceeds and REO Revenues (provided that, in
case of such reimbursement relating to (A) an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan or (B) the One &
Two Prudential Plaza Whole Loan, such reimbursement shall be made pro rata
from the One & Two Prudential Plaza Mortgage Loan and the One & Two
Prudential Plaza A2 Note, in each of case (A) and (B) subject to, and in
accordance with, the terms of the related Intercreditor Agreement, prior
to being payable out of general collections); provided, however, that if
such Servicing Advance becomes a Workout Delayed Reimbursement Amount,
then such Servicing Advance may additionally thereafter be reimbursed from
the portion of general collections and recoveries on or in respect of the
Mortgage Loans and REO Properties on deposit in its Certificate Account
(and from funds in the other Certificate Account) from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below (to be allocated between the Loan Groups as set forth in
the last paragraph of Section 3.05(a)) or, in the circumstances specified
in Section 3.19(c), from general collections;
(v) to reimburse the Trustee, itself or the other Master Servicer
(if amounts in such other Master Servicer's Certificate Account are not
sufficient for such reimbursement), as applicable (in that order) (1) for
Nonrecoverable Advances (including Workout-Delayed Reimbursement Amounts
that constitute Nonrecoverable Advances) first, out of REO Revenues,
Liquidation Proceeds and Insurance and Condemnation Proceeds received on
the related Mortgage Loan and Companion Loan, then, out of the principal
portion of general collections on the Mortgage Loans and REO Properties
(to be allocated between the Loan Groups as set forth in the last
paragraph of Section 3.05 (a)), then, to the extent the principal portion
of general collections is insufficient and with respect to such excess
only, subject to any exercise of the sole option to defer reimbursement
thereof pursuant to Section 3.19(c), out of other collections on the
Mortgage Loans and REO Properties and, (2) with respect to the
Workout-Delayed Reimbursement Amounts that are not Nonrecoverable
Advances, out of the principal portion of the general collections on the
Mortgage Loans and REO Properties (to be allocated between the Loan Groups
as set forth in the last paragraph of Section 3.05 (a)), net of such
amounts being reimbursed pursuant to (1) above (provided that, in case of
such reimbursement relating to an AB Mortgage Loan, such reimbursement
shall be made first, from amounts collected on the related Companion Loan
and then from the related Mortgage Loan subject to, and in accordance
with, the terms of the related Intercreditor Agreement and in the case of
such reimbursement relating to the One & Two Prudential Plaza Whole Loan,
such reimbursements shall be made pro rata from the One & Two Prudential
Plaza Mortgage Loan and the One & Two Prudential Plaza A2 Note, subject to
and in accordance with the related Intercreditor Agreement or to pay
itself, with respect to any Mortgage Loan and the Companion Loans, if
applicable, or REO Property any related earned Servicing Fee that remained
unpaid in accordance with clause (ii) above following a Final Recovery
Determination made with respect to such Mortgage Loan or REO Property and
the deposit into the applicable Certificate Account of all amounts
received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself or the
other Master Servicer (if amounts in such other Master Servicer's
Certificate Account are not sufficient for such reimbursement), as
applicable (in that order) for (a) any xxxxxxxxxxxx X&X Advance (including
any such P&I Advance that constitutes a Workout Delayed Reimbursement
Amount) pursuant to clause (iii) above, to pay itself or the Trustee or
the other Master Servicer (if amounts in such other Master Servicer's
Certificate Account are not sufficient for such reimbursement) or such
other servicing party, as applicable, any interest accrued and payable
thereon in accordance with Sections 4.03(d) and 3.11(c), (b) any
unreimbursed Servicing Advances (including any such Servicing Advance that
constitutes a Workout Delayed Reimbursement Amount) pursuant to clause
(iv) above, to pay itself or the Trustee or the other Master Servicer (if
amounts in such other Master Servicer's Certificate Account are not
sufficient for such reimbursement), as the case may be, any interest
accrued and payable thereon in accordance with Sections 3.03(d) and
3.11(c) or (c) any Nonrecoverable Advances pursuant to clause (v) above,
to pay itself or the Trustee or the other Master Servicer (if amounts in
such other Master Servicer's Certificate Account are not sufficient for
such reimbursement), or such other servicing party, as the case may be,
any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan being limited to that portion of the Purchase Price or Substitution
Shortfall Amount paid with respect to such Mortgage Loan that represents
such expense in accordance with clause (iii) or clause (iv) of the
definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the other Master Servicer (if amounts in such other Master Servicer's
Certificate Account are not sufficient for such reimbursement), or the
Special Servicer, as the case may be, first, out of Liquidation Proceeds,
Insurance and Condemnation Proceeds, and then out of general collections
on the Mortgage Loans and REO Properties, for any unreimbursed expense
reasonably incurred by such Person in connection with the enforcement of
the applicable Mortgage Loan Seller's obligations under Section 6 of the
applicable Mortgage Loan Purchase Agreement, but only to the extent that
such expenses are not reimbursable pursuant to clause (vii) above or
otherwise (provided that, in case of such reimbursement relating to an AB
Mortgage Loan, such reimbursements shall be made first, from amounts
collected on the related Companion Loan and then from the related Mortgage
Loan subject to, and in accordance with, the terms of the related
Intercreditor Agreement, and in the case of such reimbursement relating to
the One & Two Prudential Plaza Whole Loan, such reimbursements shall be
made pro rata from the One & Two Prudential Plaza Mortgage Loan and the
One & Two Prudential Plaza A2 Note in accordance with, the related
Intercreditor Agreement);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan subject to, and in
accordance with, the terms of the related Intercreditor Agreement, and in
the case of such reimbursement relating to the One & Two Prudential Plaza
Whole Loan, such reimbursements shall be made pro rata from the One & Two
Prudential Plaza Mortgage Loan and the One & Two Prudential Plaza A2 Note
in accordance with, the related Intercreditor Agreement);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in its
Certificate Account and the Companion Distribution Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings
with respect to its Certificate Account and the Companion Distribution
Account for the period from and including the prior P&I Advance Date to
but excluding the P&I Advance Date related to such Distribution Date) and
(B) Penalty Charges (other than Penalty Charges collected while the
related Mortgage Loan is a Specially Serviced Mortgage Loan), but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
have been paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other than
Special Servicing Fees) in accordance with Section 3.11(d); and (b) to pay
the Special Servicer, as additional servicing compensation in accordance
with Section 3.11(c), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the applicable Certificate
Account in error;
(xii) to pay itself, the other Master Servicer (if amounts in such
other Master Servicer's Certificate Account are not sufficient for such
reimbursement), the Special Servicer, the Depositor or any of their
respective directors, officers, members, managers, employees and agents,
as the case may be, out of general collections, any amounts payable to any
such Person pursuant to Section 6.03(a) or 6.03(b) (provided that, in case
of such payments relating to an AB Mortgage Loan, such reimbursements
shall be made first, from amounts collected on the related Companion Loan
and then from the related Mortgage Loan and in the case of such payments
relating to the One & Two Prudential Plaza Whole Loan, such reimbursements
shall be made pro rata from the One & Two Prudential Plaza Mortgage Loan
and the One & Two Prudential Plaza A2 Note, in each of the foregoing
instances, subject to and in accordance with the terms of the related
Intercreditor Agreement, prior to being payable out of general
collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the applicable Master Servicer, which amendment is in furtherance of the
rights and interests of Certificateholders and (c) the cost of obtaining
the REO Extension contemplated by Section 3.16(a) (provided that, in case
of such payments relating to an AB Mortgage Loan, such reimbursements
shall be made first, from amounts collected on the related Companion Loan
and then from the related Mortgage Loan and in the case of such payments
relating to the One & Two Prudential Plaza Whole Loan, such reimbursements
shall be made pro rata from the One & Two Prudential Plaza Mortgage Loan
and the One & Two Prudential Plaza A2 Note, in each of the foregoing
instances, subject to and in accordance with the terms of the related
Intercreditor Agreement, prior to being payable out of general
collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicers, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the applicable Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase; or, in the
case of the substitution for a Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 2.03(b), to pay such Mortgage Loan Seller with respect
to the replaced Mortgage Loan all amounts received thereon subsequent to
the date of substitution, and with respect to the related Qualified
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the last two
sentences of the first paragraph of Section 2.03(b);
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xviii) to clear and terminate the applicable Certificate Account at
the termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the applicable Companion Paying Agent for deposit
into the applicable Companion Distribution Account the amounts required to
be deposited pursuant to the second paragraph of Section 3.04(b); and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
Each Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from its related Certificate Account.
Each Master Servicer shall pay to the Special Servicer or the Paying
Agent from its related Certificate Account amounts permitted to be paid to it
therefrom monthly upon receipt of a certificate of a Servicing Officer of the
Special Servicer or a Responsible Officer of the Paying Agent describing the
item and amount to which the Special Servicer or the Paying Agent is entitled.
Each Master Servicer may rely conclusively on any such certificate and shall
have no duty to re-calculate the amounts stated therein. The Special Servicer
shall keep and maintain separate accounting for each Specially Serviced Mortgage
Loan and REO Loan, on a loan-by-loan and property-by-property basis, for the
purpose of justifying any request for withdrawal from the applicable Certificate
Account. To the extent a Nonrecoverable Advance or Workout Delayed Reimbursement
Amount with respect to a Mortgage Loan is required to be reimbursed from the
principal portion of the general collections on the Mortgage Loans pursuant to
clauses (iii), (iv) or (v) of this Section 3.05(a), such reimbursement shall be
made first, from the principal collection available on the Mortgage Loans
included in the same Loan Group as such Mortgage Loan and if the principal
collections in such Loan Group are not sufficient to make such reimbursement in
full, then from the principal collections available in the other Loan Group
(after giving effect to any reimbursement of Nonrecoverable Advances and Workout
Delayed Reimbursement Amounts related to such other Loan Group. To the extent a
Nonrecoverable Advance with respect to a Mortgage Loan is required to be
reimbursed from the interest portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the interest collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the interest collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the interest collections available in the other
Loan Group (after giving effect to any reimbursement of Nonrecoverable Advances
related to such other Loan Group).
(b) The Paying Agent, may, from time to time, make withdrawals from
the Lower-Tier Distribution Account for any of the following purposes:
(i) to be deemed to make deposits of the Lower-Tier Distribution
Amount pursuant to Section 4.01(b) and to distribute the amount of any
Yield Maintenance Charges distributable pursuant to Section 4.01(d) in the
Upper-Tier Distribution Account, and to make distributions on the Class LR
Certificates pursuant to Section 4.01(b);
(ii) [RESERVED];
(iii) [RESERVED];
(iv) to pay to the Trustee and the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Mortgage
Loans, pursuant to Section 8.05(b);
(v) to pay the Trustee or the Paying Agent, the Trustee Fee and the
Paying Agent Fee as contemplated by Section 8.05(a) hereof with respect to
the Mortgage Loans;
(vi) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by Section 12.01(a)
or 12.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent, which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 12.01(g);
(vii) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the Paying Agent, the REMIC
Administrator, the applicable Master Servicer or the Special Servicer is
liable therefor pursuant to Section 10.01(g);
(viii) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(ix) to pay to the applicable Master Servicer any amounts deposited
by such Master Servicer in the Distribution Account not required to be
deposited therein; and
(x) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Excess Interest Distribution Account to the extent required
to make the distributions of Excess Interest required by Section 4.01(i).
(d) The Paying Agent on behalf of the Trustee may make, or be deemed
to make, withdrawals from the Upper-Tier Distribution Account for any of the
following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class A-3FL Certificates and the Class LR Certificates) and to the
Floating Rate Account in respect of the Class A-3FL Regular Interest on
each Distribution Date pursuant to Section 4.01 or 9.01, as applicable,
subject to the penultimate paragraph of Section 3.04(b);
(ii) [RESERVED]; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in any Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee and the Paying
Agent Fee listed in Section 3.05(b)(iv) and 3.05(c)(v), then the Trustee Fee and
the Paying Agent Fee shall be paid in full prior to the payment of any Servicing
Fees payable under Section 3.05(a)(ii) and in the event that amounts on deposit
in any Certificate Account and the Lower-Tier Distribution Account are not
sufficient to pay the full amount of such Trustee Fee and such Paying Agent Fee,
the Trustee and the Paying Agent shall be paid based on the amount of such fees
and (ii) if amounts on deposit in any Certificate Account are not sufficient to
reimburse the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and Paying Agent and second to the applicable Master Servicer.
(f) Each Companion Paying Agent may, from time to time, make
withdrawals from its Companion Distribution Account to make distributions
pursuant to Section 4.01(j).
(g) The Paying Agent shall make withdrawals from the Floating Rate
Account only for the following purposes:
(i) to withdraw amounts deposited in the Floating Rate Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any funds required to be paid to the Swap Counterparty
under the Swap Contract as specified in Section 3.32(c), and to pay costs
or expenses, if any, related to the Swap Contract pursuant to Section
3.32(f);
(iii) to make distributions to the Holders of the Class A-3FL
Certificates pursuant to Section 4.01(k); and
(iv) to clear and terminate the Floating Rate Account pursuant to
Section 9.01.
Section 3.06 Investment of Funds in the Certificate Accounts and the
REO Account. (a) Each Master Servicer may direct any depository institution
maintaining its related Certificate Account, Companion Distribution Account, or
any Servicing Account (for purposes of this Section 3.06, an "Investment
Account"), the Special Servicer may direct any depository institution
maintaining the REO Account (also for purposes of this Section 3.06, an
"Investment Account") to invest or if it is such depository institution, may
itself invest, the funds held therein, only in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the next succeeding
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if a Person other than the depository institution maintaining
such account is the obligor thereon and (ii) no later than the date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement, if the depository institution maintaining such account is the obligor
thereon. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). Each Master Servicer
(in the case of each Certificate Account, Companion Distribution Account, or any
Servicing Account maintained by or for such Master Servicer) or the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer), on behalf of the Trustee, shall maintain
continuous physical possession of any Permitted Investment of amounts in each
Certificate Account, Companion Distribution Account, the Servicing Accounts or
REO Account, as applicable, that is either (i) a "certificated security," as
such term is defined in the UCC (such that the Trustee shall have control
pursuant to Section 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. 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), each Master Servicer or the Special Servicer, as applicable, shall
take or cause to be taken such action as the Trustee deems reasonably necessary
to cause the Trustee to have control over such security entitlement. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the applicable Master Servicer (in the
case of the Certificate Account, Companion Distribution Account, or any
Servicing Account maintained by or for the Master Servicer), the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the applicable Master Servicer, the Special Servicer or
the Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
the applicable Certificate Account, Companion Distribution Account, or any
Servicing Account maintained by or for the applicable Master Servicer, to the
extent of the Net Investment Earnings, if any, with respect to such account for
the period from and including the prior P&I Advance Date to but excluding the
immediately succeeding P&I Advance Date, shall be for the sole and exclusive
benefit of such Master Servicer to the extent not required to be paid to the
related Mortgagor and shall be subject to its withdrawal, or withdrawal at its
direction, in accordance with Sections 3.03 or Section 3.05(a), as the case may
be. Interest and investment income realized on funds deposited in the REO
Account or any Servicing Account maintained by or for the Special Servicer, to
the extent of the Net Investment Earnings, if any, with respect to such account
for each period from and including any P&I Advance Date to but excluding the
immediately succeeding P&I Advance Date, shall be for the sole and exclusive
benefit of the Special Servicer and shall be subject to its withdrawal in
accordance with Section 3.16(c). In the event that any loss shall be incurred in
respect of any Permitted Investment (other than any Permitted Investment the
income with respect to which is required to be paid to the related Mortgagor)
directed to be made by the applicable Master Servicer or Special Servicer, as
applicable, and on deposit in any of the Certificate Account, Companion
Distribution Account, the Servicing Account or the REO Account, such Master
Servicer (in the case of the Certificate Account, Companion Distribution
Account, or any Servicing Account maintained by or for such Master Servicer) and
the Special Servicer (in the case of the REO Account or any Servicing Account
maintained by or for the Special Servicer) shall deposit therein, no later than
the P&I Advance Date, without right of reimbursement, the amount of Net
Investment Loss, if any, with respect to such account for the period from and
including the prior P&I Advance Date, to and including the immediately
succeeding P&I Advance Date, provided that neither the applicable Master
Servicer nor the Special Servicer shall be required to deposit any loss on an
investment of funds in an Investment Account if such loss is incurred solely as
a result of the insolvency of the federal or state chartered depository
institution or trust company that holds such Investment Account, so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made (and,
with respect to a Master Servicer, such federal or state chartered depository
institution or trust company is not an Affiliate of such Master Servicer unless
such depository institution or trust company satisfied the qualification set
forth in the definition of Eligible Account both (x) at the time the investment
was made and (y) 30 days prior to such insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, each Master Servicer may and, upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The applicable Master Servicer (with respect to the
Mortgage Loans it is obligated to service hereunder and the related Specially
Serviced Mortgage Loans) or the Special Servicer (with respect to REO
Properties) shall use its efforts consistent with the Servicing Standards to
cause the Mortgagor to maintain, to the extent required by the terms of the
related Mortgage Loan all insurance coverage as is required under the related
Mortgage Loan except to the extent that the failure of the related Mortgagor to
do so is an Acceptable Insurance Default. If the Mortgagor does not so maintain
such insurance coverage, subject to its recoverability determination with
respect to any required Servicing Advance, the applicable Master Servicer (with
respect to the Mortgage Loans and Companion Loans) or the Special Servicer (with
respect to REO Properties) shall maintain all insurance coverage as is required
under the related Mortgage Loan but only in the event the Trustee has an
insurable interest therein and such insurance is available to such Master
Servicer or the Special Servicer and, if available, can be obtained at
commercially reasonable rates, as determined by such Master Servicer (or in the
case of insurance against property damage resulting from terrorist or similar
acts or insurance with respect to REO Properties, the Special Servicer) except
to the extent that the failure of the related Mortgagor to do so is an
Acceptable Insurance Default; provided, however, that if any Mortgage Loan
permits the holder thereof to dictate to the Mortgagor the insurance coverage to
be maintained on such Mortgaged Property, the applicable Master Servicer or the
Special Servicer, as the case may be, shall impose such insurance requirements
as are consistent with the Servicing Standards taking into account the insurance
in place at the closing of the Mortgage Loan, provided that, with respect to the
immediately preceding proviso, such Master Servicer will be obligated to
maintain insurance against property damage resulting from terrorist or similar
acts unless the Mortgagor's failure is an Acceptable Insurance Default and only
in the event the Trustee has an insurable interest therein and such insurance is
available to such Master Servicer and, if available, can be obtained at
commercially reasonable rates as determined by the Special Servicer, provided
that such Master Servicer shall be entitled to conclusively rely on such
determination. Subject to Section 3.17(a) and the costs of such insurance being
reimbursed or paid to the Special Servicer as provided in the penultimate
sentence of this paragraph, the Special Servicer shall maintain for each REO
Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage Loan and Companion Loan unless the Special
Servicer, with Directing Certificateholder consent, determines that such
insurance is not available at commercially reasonable rates, provided that such
Master Servicer shall be entitled to conclusively rely on such determination.
All Insurance Policies maintained by the Master Servicers or the Special
Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to
the applicable Master Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of Mortgage Loans and Companion Loans other than
REO Properties) or to the Special Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of REO Properties), (ii) be in the name of
the Trustee (in the case of insurance maintained in respect of REO Properties),
(iii) include coverage in an amount not less than the lesser of (x) the full
replacement cost of the improvements securing Mortgaged Property or the REO
Property, as applicable, or (y) the outstanding principal balance owing on the
related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any
event, the amount necessary to avoid the operation of any co-insurance
provisions, (iv) include a replacement cost endorsement providing no deduction
for depreciation (unless such endorsement is not permitted under the related
Mortgage Loan documents), (v) be noncancellable without 30 days prior written
notice to the insured party (except in the case of nonpayment, in which case
such policy shall not be cancelled without 10 days prior notice) and (vi) be
issued by a Qualified Insurer authorized under applicable law to issue such
Insurance Policies. Any amounts collected by the applicable Master Servicer or
the Special Servicer under any such Insurance Policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case in
accordance with the Servicing Standards and the provisions of the related
Mortgage Loan and Companion Loan) shall be deposited in the applicable
Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any
costs incurred by the applicable Master Servicer in maintaining any such
Insurance Policies in respect of Mortgage Loans and Companion Loans (other than
REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall
be advanced by the applicable Master Servicer as a Servicing Advance and will be
charged to the related Mortgagor and (ii) shall not, for purposes of calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance of the related Mortgage Loan and Companion Loan, notwithstanding that
the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred
by the Special Servicer in maintaining any such Insurance Policies with respect
to REO Properties shall be an expense of the Trust payable out of the related
REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor, advanced by the applicable Master Servicer as a Servicing
Advance. The foregoing provisions of this paragraph shall apply to a Mortgage
Loan and its related Companion Loan as if each pair were a single "Mortgage
Loan".
Notwithstanding the foregoing, with respect to the Mortgage Loans or
the Companion Loans that either (x) require the Mortgagor to maintain "all risk"
property insurance (and do not expressly permit an exclusion for terrorism) or
(y) contain provisions generally requiring the applicable Mortgagor to maintain
insurance in types and against such risks as the holder of such Mortgage Loan or
the Companion Loans reasonably requires from time to time in order to protect
its interests, the applicable Master Servicer will be required to, consistent
with the Servicing Standards, (A) actively monitor whether the insurance
policies for the related Mortgaged Property contain Additional Exclusions, (B)
request the Mortgagor to either purchase insurance against the risks specified
in the Additional Exclusions or provide an explanation as to its reasons for
failing to purchase such insurance and (C) notify the Special Servicer if it has
knowledge (such knowledge to be based on the applicable Master Servicer's
compliance with the immediately preceding clauses (A) and (B)) that any
insurance policy contains Additional Exclusions or if it has knowledge (such
knowledge to be based on the applicable Master Servicer's compliance with the
immediately preceding clauses (A) and (B)) that any borrower fails to purchase
the insurance requested to be purchased by the applicable Master Servicer
pursuant to clause (B) above. If the Special Servicer determines in accordance
with the Servicing Standards that such failure is not an Acceptable Insurance
Default, the Special Servicer shall notify the applicable Master Servicer and
such Master Servicer shall cause such insurance to be maintained in accordance
with this Section 3.07(a). Furthermore, the Special Servicer shall inform the
Rating Agencies as to such conclusions for those Mortgage Loans that (i) have
one of the ten (10) highest outstanding Stated Principal Balances of all of the
Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the
outstanding Stated Principal Balance of the Mortgage Loans then included in the
Trust. During the period that the Special Servicer is evaluating the
availability of such insurance, the Master Servicer will not be liable for any
loss related to its failure to require the Mortgagor to maintain such insurance
and will not be in default of its obligations as a result of such failure and
such Master Servicer will not itself maintain such insurance or cause such
insurance to be maintained.
(b) (i) If the applicable Master Servicer or the Special Servicer
shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer
insuring against fire and hazard losses on all of the Mortgage Loans, including
the One & Two Prudential Plaza Whole Loan, or REO Properties, as the case may
be, required to be serviced and administered hereunder, then, to the extent such
Insurance Policy provides protection equivalent to the individual policies
otherwise required, such Master Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the applicable Master Servicer or the Special Servicer shall, if there shall not
have been maintained on the related Mortgaged Property or REO Property a fire
and hazard Insurance Policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses which would have been covered by
such Insurance Policy, promptly deposit into the applicable Certificate Account
from its own funds the amount of such loss or losses that would have been
covered under the individual policy but are not covered under the blanket
Insurance Policy because of such deductible clause to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, including the One & Two Prudential Plaza Whole Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards. In connection with its activities as
administrator and Master Servicer of the Mortgage Loans, each Master Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket Insurance Policy in a timely
fashion in accordance with the terms of such policy. The Special Servicer, to
the extent consistent with the Servicing Standards, may maintain, earthquake
insurance on REO Properties, provided coverage is available at commercially
reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If any Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
such Master Servicer or the Special Servicer, as applicable, on behalf of
the Trustee as the loss payee, then to the extent such Insurance Policy
provides protection equivalent to the individual policies otherwise
required, such Master Servicer or the Special Servicer shall conclusively
be deemed to have satisfied its obligation to cause such insurance to be
maintained on the related Mortgaged Properties and REO Properties. In the
event the applicable Master Servicer or the Special Servicer shall cause
any Mortgaged Property or REO Property to be covered by such master single
interest or force-placed insurance policy, the incremental costs of such
insurance applicable to such Mortgaged Property or REO Property (i.e.
other than any minimum or standby premium payable for such policy whether
or not any Mortgaged Property or REO Property is covered thereby) shall be
paid by such Master Servicer as a Servicing Advance. Such master single
interest or force-placed policy may contain a deductible clause, in which
case the applicable Master Servicer or the Special Servicer shall, in the
event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions
of Section 3.07(a), and there shall have been one or more losses which
would have been covered by such policy had it been maintained, deposit
into its Certificate Account from its own funds the amount not otherwise
payable under the master single or force-placed interest policy because of
such deductible clause, to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan,
including the One & Two Prudential Plaza Whole Loan or, in the absence of
any such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards.
(c) Each of the Master Servicers and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering such Master
Servicer's and the Special Servicer's, as the case may be, officers and
employees acting on behalf of such Master Servicer and the Special Servicer in
connection with its activities under this Agreement. Notwithstanding the
foregoing, so long as the long term debt or the deposit obligations or
claims-paying ability of the applicable Master Servicer or the Special Servicer,
as the case may be, is rated at least "A3" by Xxxxx'x, "A" by S&P and "A" by
Fitch, the Master Servicer or the Special Servicer, as applicable, shall be
allowed to provide self-insurance with respect to a fidelity bond and an "errors
and omissions" Insurance Policy. Such amount of coverage shall be in such form
and amount as are consistent with the Servicing Standards. Coverage of any
Master Servicer or the Special Servicer under a policy or bond obtained by an
Affiliate of the applicable Master Servicer or the Special Servicer and
providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c). The Special Servicer and the applicable
Master Servicer will promptly report in writing to the Trustee any material
changes that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicers and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time any Master Servicer determines in accordance with
the Servicing Standards that any Mortgaged Property securing a Mortgage Loan it
is obligated to servicer hereunder is in a federally designated special flood
hazard area (and such flood insurance has been made available), such Master
Servicer will use efforts consistent with the Servicing Standards to cause the
related Mortgagor (in accordance with applicable law and the terms of the
Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by such Master
Servicer, in accordance with the Servicing Standards and to the extent the
Trustee, as mortgagee, has an insurable interest therein), flood insurance in
respect thereof, but only to the extent the related Mortgage Loan or Companion
Loan permits the mortgagee to require such coverage and the maintenance of such
coverage is consistent with the Servicing Standards. Such flood insurance shall
be in an amount equal to the lesser of (i) the unpaid principal balance of the
related Mortgage Loan and Companion Loan, and (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the applicable Master Servicer shall promptly make a Servicing
Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the applicable Master Servicer as a
Servicing Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) As to each Mortgage Loan or Companion Loan which contains a
provision in the nature of a "due-on-sale" clause (including, without
limitation, if so provided in the "due-on-sale" provision of the related
Mortgage Loan documents, sales or transfers of Mortgaged Property (in full or
part) or the sale, transfer, pledge or hypothecation of direct or indirect
interests of a Mortgagor or its owners), which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or equity
interests in the Mortgagor or principals of the Mortgagor; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) any right
it might have with respect to such Mortgage Loan or Companion Loan (x) to
accelerate the payments thereon or (y) to withhold its consent, provided that,
(i) prior to taking such an action, the Special Servicer shall obtain, the prior
written consent of the Directing Certificateholder, which consent shall be
deemed given 10 Business Days after receipt (unless earlier objected to) by the
Directing Certificateholder of the Special Servicer's analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Directing Certificateholder, and (ii) with respect to
any Mortgage Loan, together with any other Mortgage Loans cross-collateralized
with such Mortgage Loan, or together with all other Mortgage Loans with the same
or an affiliated Mortgagor (x) with a Stated Principal Balance greater than or
equal to $20,000,000, (y) with a Stated Principal Balance greater than 5% of the
aggregate Stated Principal Balance of all the Mortgage Loans then outstanding or
(z) that is one of the ten largest of the then outstanding Mortgage Loans, by
Stated Principal Balance, the Special Servicer shall not take such action unless
it has obtained confirmation from each Rating Agency stating that none of the
then-current rating or ratings of all outstanding Classes of the Certificates
and, if applicable, any classes of Companion Loan Securities, would be
qualified, downgraded or withdrawn by such Rating Agency, as a result of such
waiver) any right it may have with respect to such Mortgage Loan or Companion
Loan (x) to accelerate the payments thereon or (y) to withhold its consent to
the sale or transfer. If the applicable Master Servicer receives a request from
a Mortgagor in respect of the provision set forth in this section, such request
shall be forwarded to the Special Servicer upon receipt together with a copy of
any applicable Mortgage Loan documents. The applicable Master Servicer shall
have no further obligations pursuant to this Section 3.08 and shall have no
liability for actions taken or not taken by the Special Servicer pursuant to
this Section 3.08.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan or the related Mortgaged Property may be assumed or
transferred without the consent or discretion of the mortgagee provided that
certain conditions are satisfied, then for so long as such Mortgage Loan or
Companion Loan is being serviced under this Agreement, the Special Servicer, on
behalf of the Trustee as the mortgagee of record, shall determine in accordance
with the Servicing Standards whether such conditions have been satisfied.
(b) As to each Mortgage Loan and Companion Loan which contains a
provision in the nature of a "due-on-encumbrance" clause (including, without
limitation, if so provided in the "due-on-encumbrance" provisions of the related
Mortgage Loan documents, any mezzanine financing of the Mortgagor or the
Mortgaged Property or any sale or transfer of preferred equity in the Mortgagor
or its owners), which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property
or equity interests in the Mortgagor or principals of the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan and Companion Loan is serviced under
this Agreement, the Special Servicer, on behalf of the Trustee as the mortgagee
of record, shall exercise (or waive its right to exercise) any right it may have
with respect to such Mortgage Loan or Companion Loan (x) to accelerate the
payments thereon or (y) to withhold its consent, provided that the Special
Servicer, has obtained (i) the prior written consent of the Directing
Certificateholder, which consent shall be deemed given 10 Business Days after
receipt by the Directing Certificateholder of the Special Servicer's analysis
and recommendation with respect to such waiver together with such other
information reasonably required by the Directing Certificateholder, and (ii)
from each Rating Agency a confirmation that such waiver would not result in the
downgrade, withdrawal or qualification of the then-current ratings on any Class
of outstanding Certificates or any class of Companion Loan Securities if such
Mortgage Loan (1) together with any other Mortgage Loans cross-collateralized
with such Mortgage Loan, or together with all other Mortgage Loans with the same
or an affiliated Mortgagor, has an outstanding principal balance that is greater
than or equal to 2% of the Stated Principal Balance of the outstanding Mortgage
Loans or (2) has an LTV Ratio (including existing and proposed debt) greater
than 85% (including any proposed debt) or (3) a Debt Service Coverage Ratio less
than 1.20x (in each case, determined based upon the aggregate of the Stated
Principal Balance of the Mortgage Loan and the principal amount of the proposed
additional loan) or (4) together with any other Mortgage Loans
cross-collateralized with such Mortgage Loan, or together with all other
Mortgage Loans with the same or an affiliated Mortgagor, is one of the ten (10)
largest Mortgage Loans (by Stated Principal Balance) or (5) together with any
other Mortgage Loans cross-collateralized with such Mortgage Loan, or together
with all other Mortgage Loans with the same or an affiliated Mortgagor, has a
Stated Principal Balance over $20,000,000) any right it may have with respect to
such Mortgage Loan (x) to accelerate the payments thereon or (y) to withhold its
consent to the creation of any such additional lien or other encumbrance, in a
manner consistent with the Servicing Standards. If the applicable Master
Servicer receives a request from a Mortgagor in respect to the provision set
forth in this section, such request shall be forwarded to the Special Servicer
upon receipt along with a copy of any Mortgage Loan documents. The applicable
Master Servicer shall have no further obligations pursuant to this Section 3.08
and shall have no liability for actions taken or not taken by the Special
Servicer pursuant to this Section 3.08.
If any Mortgage Loan or Companion Loan provides that the related
Mortgaged Property may be further encumbered without the consent of the
mortgagee provided that certain conditions are satisfied and there is no lender
discretion with respect to the satisfaction of such conditions, then for so long
as such Mortgage Loan or Companion Loan is being serviced under this Agreement,
the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
determine whether such conditions have been satisfied.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e) neither the Master Servicers nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Special Servicer shall each provide copies of any waivers it effects pursuant to
Section 3.08(a) or (b) to the other and each Rating Agency with respect to each
Mortgage Loan.
(e) Notwithstanding anything in this Section 3.08 or Section 3.28 to
the contrary, the applicable Master Servicer shall not be required to seek the
consent of, or provide prior notice to, the Special Servicer, any
Certificateholder or the Directing Certificateholder or obtain any confirmation
of the Certificate ratings from the Rating Agencies in order to approve the
following modifications, waivers or amendments of the Mortgage Loans (including
any Companion Loans related thereto) (but, in the case of the actions described
in clauses (iii) and (iv) of this sentence, shall notify the Directing
Certificateholder thereof):
(i) approving routine leasing activity with respect to any lease for
less than the lesser of (A) 15,000 square feet and (B) 20% of the related
Mortgaged Property; provided that (1) no subordination, non-disturbance
and attornment agreement (an "SNDA") exists with respect to such lease and
(2) no such lease is a Ground Lease; and provided further that the
applicable Master Servicer shall not grant or approve (but shall forward
to the Special Servicer for its approval) any request for (or any waiver,
consent, approval, amendment or modification in connection with) an SNDA
or approval of a lease that contains an SNDA;
(ii) approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor; provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(iii) approving annual budgets for the related Mortgaged Property;
provided that no such budget (A) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than the
payment of a management fee to any property manager if such management fee
is no more than the management fee in effect on the Cut-off Date);
(iv) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(v) approving modifications, consents or waivers (other than as set
forth in Section 3.20) in connection with a defeasance permitted by the
terms of the related Mortgage Loan (including any Companion Loan related
thereto) if the Master Servicer receives an Opinion of Counsel (which
Opinion of Counsel shall be an expense of the Mortgagor) to the effect
that such modification, waiver or consent would not cause either the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
under the Code or result in a "prohibited transaction" under the REMIC
Provisions;
(vi) approving consents with respect to non-material right-of-ways
and non-material easements and consent to subordination of the related
Mortgage Loan (including any Companion Loan related thereto) to such
non-material rights-of-way or easements;
(vii) any non-material modifications, waivers or amendments not
provided for in clauses (i) through (vi) above, which are necessary to
cure any ambiguities or to correct scrivener's errors in the terms of the
related Mortgage Loan (including any Companion Loan related thereto); and
provided that any such modification, waiver or amendment, or
agreeing to any such modification, waiver or amendment, (w) would not in any way
affect a payment term of the Certificates, (x) would not constitute a
"significant modification" of such Mortgage Loan (or any Companion Loan related
thereto) pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event or cause the Grantor Trust to fail
to qualify as a grantor trust under subpart E, Part I of subchapter J of the
Code for federal income tax purposes, (y) would be consistent with the Servicing
Standard, and (z) shall not violate the terms, provisions or limitations of this
Agreement or any other document contemplated hereby; and provided, however, in
the case of any Companion Loan, to the extent required by the applicable
Intercreditor Agreement, the applicable Master Servicer shall provide written
notice of such action to the related Companion Holder; and provided, further,
that the applicable Master Servicer shall promptly notify the Special Servicer
of any requests not subject to this Section 3.08(e) for which the Special
Servicer is responsible pursuant to this Section 3.08 and shall deliver to the
Special Servicer (which delivery may be by electronic transmission in a format
acceptable to the applicable Master Servicer and Special Servicer) a copy of the
request, and all information in the possession of the applicable Master Servicer
that the Special Servicer may reasonably request related thereto. For the
avoidance of doubt, and without limiting the generality of the foregoing, any
request for the disbursement of earnouts or holdback amounts with respect to any
Mortgage Loan set forth on Schedule 5 received by the applicable Master Servicer
shall be submitted to the Special Servicer for approval (which approval shall be
deemed given if the request is not denied by the Special Servicer in writing to
the applicable Master Servicer within ten (10) Business Days of the Special
Servicer's receipt of such request). For purposes of this Agreement,
"disbursement of earnouts or holdback amounts" shall mean the disbursement or
funding to a borrower of previously unfunded, escrowed or otherwise reserved
portions of the loan proceeds of the applicable Mortgage Loan until certain
conditions precedent thereto relating to the satisfaction of performance-related
criteria (such as project reserve thresholds, lease-up requirements, sales
requirements and other performance-related criteria), as set forth in the
applicable loan documents, have been satisfied. Mortgage Loans with such earnout
reserves or holdbacks are indicated on the Mortgage Loan Schedule.
(f) Notwithstanding any other provision of this Agreement, the
Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater or equal to
$2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice along with the applicable
Master Servicer's and Special Servicer's recommendation and analysis with
respect to such waiver and any additional information the Directing
Certificateholder may reasonably request from the Special Servicer of a proposed
waiver or consent under any "due on sale" or "due on encumbrance" clause in
which to grant or withhold its consent (provided that if the Special Servicer
fails to receive a response to such notice from the Directing Certificateholder
in writing within such period, then the Directing Certificateholder shall be
deemed to have consented to such proposed waiver or consent).
(g) Notwithstanding the foregoing provisions of this Section 3.08,
if the Special Servicer makes a determination that the applicable conditions in
the related Mortgage Loan or Companion Loan documents, as applicable, with
respect to assumptions or encumbrances permitted without the consent of the
mortgagee have been satisfied, the applicable assumptions and transfers may be
subject to an assumption or other fee (payable as set forth in Section 3.11),
unless otherwise prohibited in the related Mortgage Loan or Companion Loan
documents, as applicable.
(h) The Special Servicer shall be responsible for all servicing and
actions hereunder related to any defeasance, release or assumption related to
the One & Two Prudential Plaza Mortgage Loan. The applicable Master Servicer
shall promptly forward any notices related to such actions to the Special
Servicer, but the applicable Master Servicer shall have no obligation to perform
any such actions hereunder.
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.29, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
applicable Master Servicer or Special Servicer shall not be required to make a
Servicing Advance and expend funds toward the restoration of such property
unless the Special Servicer has determined in its reasonable discretion that
such restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to such Master Servicer for
such Servicing Advance, and such Master Servicer or Special Servicer has not
determined that such Servicing Advance together with accrued and unpaid interest
thereon would constitute a Nonrecoverable Advance. The costs and expenses
incurred by the Special Servicer in any such proceedings shall be advanced by
the applicable Master Servicer, provided that, in each case, such cost or
expense would not, if incurred, constitute a Nonrecoverable Servicing Advance.
Nothing contained in this Section 3.09 shall be construed so as to require the
applicable Master Servicer or the Special Servicer, on behalf of the Trust, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
such Master Servicer or the Special Servicer in its reasonable judgment taking
into account the factors described in Section 3.18(b) and the results of any
Appraisal obtained pursuant to the following sentence, all such bids to be made
in a manner consistent with the Servicing Standards. If and when the Special
Servicer or the applicable Master Servicer deems it necessary and prudent for
purposes of establishing the fair market value of any Mortgaged Property
securing a Defaulted Mortgage Loan or defaulted Companion Loan, whether for
purposes of bidding at foreclosure or otherwise, the Special Servicer or such
Master Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property by an Independent MAI-designated
appraiser the cost of which shall be paid by such Master Servicer as a Servicing
Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the applicable Master Servicer as a
Servicing Advance) to the effect that the holding of such personal
property by the Trust Fund (to the extent not allocable to a Companion
Loan) will not cause the imposition of a tax on the Upper-Tier REMIC or
the Lower-Tier REMIC under the REMIC Provisions or cause the Upper-Tier
REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Uncertificated Lower-Tier Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.29, neither the Special Servicer nor the Master Servicers shall,
on behalf of the Trustee, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders and/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
applicable Master Servicer as a Servicing Advance and the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding sentence shall be paid by the applicable Master Servicer at the
direction of the Special Servicer as a Servicing Advance, unless it is a
Nonrecoverable Servicing Advance (in which case it shall be an expense of the
Trust Fund); and if any such Environmental Assessment so warrants, the Special
Servicer shall (except with respect to any Companion Loan and any Environmental
Assessment ordered after the related AB Mortgage Loan or the One & Two
Prudential Plaza Mortgage Loan, as the case may be, has been paid in full), at
the expense of the Trust Fund, perform such additional environmental testing as
it deems necessary and prudent to determine whether the conditions described in
clauses (i) and (ii) of the preceding sentence have been satisfied. With respect
to Non-Specially Serviced Mortgage Loans, the applicable Master Servicer and,
with respect to Specially Serviced Mortgage Loans, the Special Servicer shall
review and be familiar with the terms and conditions relating to enforcing
claims and shall monitor the dates by which any claim or action must be taken
(including delivering any notices to the insurer and using reasonable efforts to
perform any actions required under such policy) under each environmental
insurance policy in effect and obtained on behalf of the mortgagee to receive
the maximum proceeds available under such policy for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-3FL Regular
Interest and the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 6 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage, provided
that, if such Mortgage Loan has a then outstanding principal balance of greater
than $1,000,000, then prior to the release of the related Mortgaged Property
from the lien of the related Mortgage, (i) the Special Servicer shall have
notified the Rating Agencies, the Trustee, the Paying Agent, the applicable
Master Servicer and the Directing Certificateholder in writing of its intention
to so release such Mortgaged Property and the bases for such intention, (ii) the
Paying Agent shall have notified the Certificateholders in writing of the
Special Servicer's intention to so release such Mortgaged Property, (iii) the
Holders of Certificates entitled to a majority of the Voting Rights shall have
consented to such release within 30 days of the Paying Agent's distributing such
notice (failure to respond by the end of such 30-day period being deemed
consent), and (iv) the Special Servicer shall have received written confirmation
from each Rating Agency that such release will not cause the downgrade,
withdrawal or qualification of any of the then-current ratings of any Class of
Certificates or class of Companion Loan Securities. To the extent any fee
charged by each Rating Agency in connection with rendering such written
confirmation is not paid by the related Mortgagor, such fee is to be an expense
of the Trust provided, that the applicable Master Servicer and the Special
Servicer, as the case may be, shall use its reasonable efforts to collect such
fee from the Mortgagor to the extent permitted under the related Mortgage Loan
documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder, each Rating Agency and the applicable Master Servicer monthly
regarding any actions taken by the Special Servicer with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan or defaulted Companion
Loan as to which the environmental testing contemplated in subsection (c) above
has revealed that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied, in each case until the
earlier to occur of satisfaction of both such conditions, repurchase of the
related Mortgage Loan by the applicable Mortgage Loan Seller or release of the
lien of the related Mortgage on such Mortgaged Property. The Paying Agent shall
forward, or cause to be forwarded all such reports to each Rating Agency and the
Certificateholders upon request.
(f) The Special Servicer shall notify the applicable Master Servicer
of any abandoned and/or foreclosed properties which require reporting to the
Internal Revenue Service and shall provide such Master Servicer with all
information regarding forgiveness of indebtedness and required to be reported
with respect to any Mortgage Loan or Companion Loan which is abandoned or
foreclosed and such Master Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, such
information and such Master Servicer shall report, via Form 1099C or any
successor form, all forgiveness of indebtedness to the extent such information
has been provided to such Master Servicer by the Special Servicer. Upon request,
each Master Servicer shall deliver a copy of any such report to the Trustee and
the Paying Agent.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Paying Agent,
the Directing Certificateholder and the applicable Master Servicer and in no
event later than the next succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan, or the receipt by any Master
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, such
Master Servicer or Special Servicer, as the case may be, will immediately notify
the Trustee and request delivery of the related Mortgage File. Any such notice
and request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the applicable Certificate Account pursuant to Section 3.04(a) or
remitted to the applicable Master Servicer to enable such deposit, have been or
will be so deposited. Within seven Business Days (or within such shorter period
as release can reasonably be accomplished if the applicable Master Servicer or
the Special Servicer notifies the Trustee of an exigency) of receipt of such
notice and request, the Trustee shall release, or cause any related Custodian to
release, the related Mortgage File to the applicable Master Servicer or Special
Servicer, as the case may be; provided, however, that in the case of the payment
in full of the One & Two Prudential Plaza Mortgage Loan, the Mortgage Loan File
with respect to the One & Two Prudential Plaza Whole Loan shall not be released
by the Trustee (and the Master Servicer or Special Servicer shall not request
such release) unless such Mortgage Loan that is paid in full is the sole
remaining portion of the One & Two Prudential Plaza Whole Loan. If the Mortgage
has been recorded in the name of MERS or its designee, the applicable Master
Servicer shall take all necessary and reasonable actions to reflect the release
of the Mortgage on the records of MERS. No expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (and any related Companion Loan), the applicable Master
Servicer or the Special Servicer shall deliver to the Trustee a Request for
Release signed by a Servicing Officer. Upon receipt of the foregoing, the
Trustee shall deliver or cause the related Custodian to deliver, the Mortgage
File or any document therein to the applicable Master Servicer or the Special
Servicer (or a designee), as the case may be. Upon return of such Mortgage File
or such document to the Trustee or the related Custodian, or the delivery to the
Trustee of a certificate of a Servicing Officer of the applicable Master
Servicer or the Special Servicer, as the case may be, stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
applicable Certificate Account pursuant to Section 3.04(a) have been or will be
so deposited, or that such Mortgage Loan has become an REO Property, a copy of
the Request for Release shall be released by the Trustee to the applicable
Master Servicer or the Special Servicer (or a designee), as the case may be,
with the original being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, each Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan (to the
extent permitted in the related Intercreditor Agreement) and REO Loan (including
Specially Serviced Mortgage Loans) that it is responsible for servicing
hereunder. As to each Mortgage Loan, Companion Loan and REO Loan, the Servicing
Fee shall accrue from time to time at the Servicing Fee Rate and shall be
computed on the basis of the Stated Principal Balance of such Mortgage Loan or
Companion Loan or REO Loan, as the case may be, and in the same manner as
interest is calculated on such Mortgage Loan, Companion Loan or REO Loan, as the
case may be, and, in connection with any partial month interest payment, for the
same period respecting which any related interest payment due on such Mortgage
Loan, Companion Loan or REO Loan or deemed to be due on such REO Loan is
computed. The Servicing Fee with respect to any Mortgage Loan, Companion Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
The Servicing Fee shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Mortgage Loan, Companion Loan and REO Revenues
allocable as interest on each REO Loan, and as otherwise provided by Section
3.05(a). Each Master Servicer shall be entitled to recover unpaid Servicing Fees
in respect of any Mortgage Loan, Companion Loan or REO Loan out of that portion
of related payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
and REO Revenues (in the case of an REO Loan) allocable as recoveries of
interest, to the extent permitted by Section 3.05(a). Except as set forth in
Sections 6.02, 6.04 and 7.01(c), the right to receive the Servicing Fee may not
be transferred in whole or in part.
Each Master Servicer shall be entitled to retain, and shall not be
required to deposit in its Certificate Account pursuant to Section 3.04(a),
additional servicing compensation in the form of (i) 100% of modification,
waiver and consent fees pursuant to Section 3.08(e) with respect to the Mortgage
Loans that such Master Servicer is responsible for servicing provided the
consent of the Special Servicer is not required to take such action and, in the
event that the Special Servicer's consent is required, then the applicable
Master Servicer shall be entitled to 50% of such fees, (ii) 100% of all
defeasance fees and 50% of all application fees received on Non-Specially
Serviced Mortgage Loans that it is responsible for servicing and (iii) 50% of
all assumption, waiver and consent fees pursuant to Section 3.08(a) and Section
3.08(b) on the Non-Specially Serviced Mortgage Loans that it is responsible for
servicing, to the extent that such fees are paid by the Mortgagor and only to
the extent that all amounts then due and payable with respect to the related
Mortgage Loan have been paid; provided, the applicable Master Servicer shall not
be entitled to any fees for defeasances, releases or assumptions received on the
One & Two Prudential Plaza Mortgage Loan; provided further, that for purposes of
this Section 3.11(a), the applicable Master Servicer will be entitled to receive
50% of the assumption, waiver and consent fees pursuant to Section 3.08(a) and
Section 3.08(b) on the Non-Specially Serviced Mortgage Loans if the related
assumption, transfer or encumbrance is permitted without the consent of the
mortgagee provided that certain conditions set forth in the related Mortgage
Loan documents are satisfied. In addition, each Master Servicer shall be
entitled to retain as additional servicing compensation any charges for
processing Mortgagor requests, beneficiary statements or demands, reasonable and
customary consent fees, fees in connection with defeasance, if any, and other
customary charges, and amounts collected for checks returned for insufficient
funds, in each case only to the extent actually paid by the related Mortgagor
and shall not be required to deposit such amounts in its Certificate Account or
the Companion Distribution Account pursuant to Section 3.04(a); provided, the
applicable Master Servicer shall not be entitled to any charges or fees for
defeasances, releases or assumptions received on the One & Two Prudential Plaza
Mortgage Loan. Subject to Section 3.11(d), each Master Servicer shall also be
entitled to additional servicing compensation in the form of: (i) Penalty
Charges to the extent provided in Section 3.11 (d), (ii) interest or other
income earned on deposits relating to the Trust Fund in its Certificate Account
or its Companion Distribution Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to such
account for the period from the prior P&I Advance Date to, but excluding the P&I
Advance Date related to such Distribution Date), (iii) interest or other income
earned on deposits in the Servicing Account which are not required by applicable
law or the related Mortgage Loan to be paid to the Mortgagor and (iv) the
difference, if positive, between Prepayment Interest Excess and Prepayment
Shortfalls collected on the Mortgage Loans during the related Due Period to the
extent not required to be paid as Compensating Interest Payments as determined
on a Servicing Group basis. Each Master Servicer shall be required to pay out of
its own funds all expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket Insurance
Policy insuring against hazard losses pursuant to Section 3.07), if and to the
extent such expenses are not payable directly out of its Certificate Account and
such Master Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
or REO Loan, as the case may be, and in the same manner as interest is
calculated on the Specially Serviced Mortgage Loans or REO Loans, as the case
may be, and, in connection with any partial month interest payment, for the same
period respecting which any related interest payment due on such Specially
Serviced Mortgage Loan or deemed to be due on such REO Loan is computed. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, in
accordance with the provisions of Section 3.05(a). The right to receive the
Special Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer's responsibilities
and obligations under this Agreement.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans to the extent such fees are paid by the Mortgagor, (ii)
50% of all application fees received on Non-Specially Serviced Mortgage Loans,
(iii) 50% of all assumption, waiver and consent fees pursuant to Section 3.08(a)
and 3.08(b) or 3.20 received with respect to all Non-Specially Serviced Mortgage
Loans and for which the Special Servicer's consent or approval is required and
(iv) without duplication, 100% of any fees for defeasances, releases or
assumptions received on the One & Two Prudential Plaza Mortgage Loan, shall be
promptly paid to the Special Servicer by the applicable Master Servicer to the
extent such fees are paid by the Mortgagor and shall not be required to be
deposited in the applicable Certificate Account pursuant to Section 3.04(a);
provided, that, notwithstanding the foregoing with respect to each Mortgage Loan
set forth on Schedule 3, if any, the percentage of the fees to be paid to the
applicable Master Servicer with respect to assumptions shall be as set forth on
Schedule 3. The Special Servicer shall also be entitled to additional servicing
compensation in the form of a Workout Fee with respect to each Corrected
Mortgage Loan at the Workout Fee Rate on such Mortgage Loan for so long as it
remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if such loan again becomes a Specially
Serviced Mortgage Loan; provided that a new Workout Fee will become payable if
and when such Specially Serviced Mortgage Loan again becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated (other than for cause) or
resigns, it shall retain the right to receive any and all Workout Fees payable
in respect of Mortgage Loans or Companion Loans that became Corrected Mortgage
Loans prior to the time of that termination or resignation except the Workout
Fees will no longer be payable if the Mortgage Loan subsequently becomes a
Specially Serviced Mortgage Loan. If the Special Servicer resigns or is
terminated (other than for cause), it will receive any Workout Fees payable on
Specially Serviced Mortgage Loans for which the resigning or terminated Special
Servicer had cured the event of default through a modification, restructuring or
workout negotiated by the Special Servicer and evidenced by a signed writing
with respect to which one (1) scheduled payment has been made, but which had not
as of the time the Special Servicer resigned or was terminated become a
Corrected Mortgage Loan solely because the Mortgagor had not had sufficient time
to make three consecutive timely Monthly Payments and which subsequently becomes
a Corrected Mortgage Loan as a result of the Mortgagor making such three
consecutive timely Monthly Payments. The successor Special Servicer will not be
entitled to any portion of such Workout Fees. The Special Servicer will not be
entitled to receive any Workout Fees after termination for cause. A Liquidation
Fee will be payable with respect to each Specially Serviced Mortgage Loan or REO
Property as to which the Special Servicer receives any Liquidation Proceeds or
Insurance and Condemnation Proceeds subject to the exceptions set forth in the
definition of Liquidation Fee (such Liquidation Fee to be paid out of such
Liquidation Proceeds, Insurance and Condemnation Proceeds). Notwithstanding
anything to the contrary described above, no Liquidation Fee will be payable
based on, or out of, Liquidation Proceeds received in connection with (A) the
repurchase of any Mortgage Loan by a Mortgage Loan Seller for a breach of
representation or warranty or for defective or deficient Mortgage Loan
documentation so long as such repurchase is completed within the period
(including any extension thereof) provided for such repurchase in this Agreement
and the Mortgage Loan Purchase Agreement, (B) the purchase of any Specially
Serviced Mortgage Loan by the Majority Controlling Class Certificateholder or
the Special Servicer, (C) the purchase of any AB Mortgage Loan or REO Property
by the related Companion Holder pursuant to the related Intercreditor Agreement,
(D) the purchase of any Mortgage Loan by the related mezzanine lender if the
repurchase occurs within the period provided for such repurchase in the related
intercreditor agreement (or, if no such time period is specified, with 60 days
of notice to the related mezzanine lender of its option to purchase the related
Mortgage Loan) or (E) the purchase of all of the Mortgage Loans and REO
Properties in connection with an optional termination of the Trust Fund pursuant
to Section 9.01. If, however, Liquidation Proceeds or Insurance and Condemnation
Proceeds are received with respect to any Corrected Mortgage Loan and the
Special Servicer is properly entitled to a Workout Fee, such Workout Fee will be
payable based on and out of the portion of such Liquidation Proceeds and
Insurance and Condemnation Proceeds that constitute principal and/or interest on
such Mortgage Loan. Notwithstanding anything herein to the contrary, the Special
Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee,
but not both, with respect to proceeds on any Mortgage Loan. Notwithstanding the
foregoing, with respect to any subordinate Companion Loan, the Liquidation Fee,
if any, will be computed only if permitted, and to the extent provided, in the
related Intercreditor Agreement. Subject to Section 3.11(d), the Special
Servicer will also be entitled to additional fees in the form of Penalty Charges
to the extent provided in subsection (d). The Special Servicer shall be required
to pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts, other than management fees in respect of REO Properties, due and owing
to any of its Sub-Servicers and the premiums for any blanket Insurance Policy
obtained by it insuring against hazard losses pursuant to Section 3.07), if and
to the extent such expenses are not expressly payable directly out of the
applicable Certificate Account or the REO Account, and the Special Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
(d) In determining the compensation of the Master Servicers or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied (in such order) to reimburse
(i) the applicable Master Servicer or the Trustee for interest on Advances on
such Mortgage Loan due on such Distribution Date, (ii) the Trust Fund for all
interest on Advances previously paid to the applicable Master Servicer or the
Trustee pursuant to Section 3.05(a)(vi) hereof with respect to such Mortgage
Loan and (iii) the Trust Fund for costs of all additional Trust Fund expenses
(including Special Servicing Fees, Workout Fees and Liquidation Fees), including
without limitation, inspections by the Special Servicer and all unpaid Advances
incurred since the Closing Date with respect to such Mortgage Loan; Penalty
Charges remaining thereafter shall be distributed to the applicable Master
Servicer, if and to the extent collected while the Mortgage Loan was a
Non-Specially Serviced Mortgage Loan and to the Special Servicer if and to the
extent collected on such Mortgage Loan during the period such Mortgage Loan was
a Specially Serviced Mortgage Loan. Notwithstanding the foregoing, Penalty
Charges with respect to any subordinate Companion Loan will be allocated
pursuant to the applicable Intercreditor Agreement after payment of all related
Advances and interest thereon.
Section 3.12 Inspections; Collection of Financial Statements. (a)
Each Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
securing a Mortgage Loan that it is responsible for servicing hereunder with a
stated Principal Balance of (i) $2,000,000 or more at least once every 12 months
and (ii) less than $2,000,000 at least once every 24 months, in each case
commencing in the calendar year 2007 (and each Mortgaged Property shall be
inspected on or prior to June 2008); provided, however, that if a physical
inspection has been performed by the Special Servicer in the previous 12 months
and such Master Servicer has no knowledge of a material change in the Mortgaged
Property since such physical inspection, such Master Servicer will not be
required to perform or cause to be performed, such physical inspection;
provided, further, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect or
cause to be inspected the related Mortgaged Property as soon as practicable
after such Mortgage Loan becomes a Specially Serviced Mortgage Loan and annually
thereafter for so long as such Mortgage Loan remains a Specially Serviced
Mortgage Loan. The cost of such inspection by the Special Servicer shall be an
expense of the Trust Fund, and to the extent not paid by the related Mortgagor
reimbursed first from Penalty Charges actually received from the related
Mortgagor and then from the applicable Certificate Account pursuant to Section
3.05(a)(ii). The Special Servicer or the applicable Master Servicer, as the case
may be, shall prepare or cause to be prepared a written report of each such
inspection detailing the condition of the Mortgaged Property and specifying the
existence of (i) any vacancy in the Mortgaged Property that the preparer of such
report deems material, (ii) any sale, transfer or abandonment of the Mortgaged
Property of which it has knowledge, (iii) any adverse change in the condition of
the Mortgaged Property that the preparer of such report deems material, (iv) any
visible material waste committed on the Mortgaged Property and (v) photographs
of each inspected Mortgaged Property. The Special Servicer and the applicable
Master Servicer shall deliver a copy of each such report prepared by the Special
Servicer and the applicable Master Servicer, respectively, to the other, to the
Directing Certificateholder and, upon request, to the Trustee, the Paying Agent
and the Rating Agencies within five (5) Business Days after request (or if such
request is received before such report is completed, within five (5) Business
Days after completion of such report). The Paying Agent shall deliver a copy of
each such report to the Controlling Class Certificateholder (and with respect to
the One & Two Prudential Plaza Whole Loan, the One & Two Prudential Plaza A2
Noteholder) upon request and to each Holder of a Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q and Class NR
Certificate, upon request (which such request may state that such items be
delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the applicable Master Servicer, in the case of any
Non-Specially Serviced Mortgage Loans, shall make reasonable efforts to collect
promptly from each Mortgagor annual operating statements and rent rolls of the
related Mortgaged Property, financial statements of such Mortgagor and any other
reports required to be delivered under the terms of the Mortgage Loans (and each
Companion Loan), if delivery of such items is required pursuant to the terms of
the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the applicable Master Servicer, in the case of any
Non-Specially Serviced Mortgage Loan shall make reasonable efforts to collect
promptly from each related Mortgagor quarterly and annual operating statements,
budgets and rent rolls of the related Mortgaged Property, and the quarterly and
annual financial statements of such Mortgagor, whether or not delivery of such
items is required pursuant to the terms of the related Mortgage. Each Master
Servicer shall not be required to request such statements more than once if the
related Mortgagor is not required to deliver such statements pursuant to the
terms of the Mortgage Loan documents. In addition, the Special Servicer shall
cause quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
all such items to the applicable Master Servicer within five (5) days of receipt
and such Master Servicer and the Special Servicer each shall deliver copies of
all the foregoing items so collected thereby to the Trustee, the Paying Agent,
the Directing Certificateholder and, upon request, to the Depositor and each
other, in each case within 60 days of its receipt thereof, but in no event, in
the case of annual statements, later than June 30 of each year commencing June
30, 2007. The Paying Agent shall, upon request, deliver copies (in hard copy,
electronic format or make available on its Internet website) of the foregoing
items to the Underwriters, the Trustee, the Rating Agencies, the Controlling
Class Certificateholders, the Mortgage Loan Sellers or, to the extent the
Certificate Registrar has confirmed the Ownership Interest in Certificates held
thereby, any Certificate Owner, a copy (or image in suitable electronic media)
of each such report prepared by the applicable Master Servicer or the Special
Servicer.
Within 45 days after receipt by the applicable Master Servicer, with
respect to Non-Specially Serviced Mortgage Loans it is responsible for servicing
hereunder, or the Special Servicer with respect to Specially Serviced Mortgage
Loans of any annual operating statements or rent rolls with respect to any
Mortgaged Property or REO Property, or if such date would be after June 30 of
any year, then within 30 days after receipt, such Master Servicer shall, based
upon such operating statements or rent rolls received, prepare (or, if
previously prepared, update) the analysis of operations and the CMSA NOI
Adjustment Worksheet and the CMSA Operating Statement Analysis Report. Upon the
occurrence and continuation of a Servicing Transfer Event, the applicable Master
Servicer shall provide the Special Servicer with all prior CMSA Operating
Statement Analysis Reports and CMSA NOI Adjustment Worksheets for the related
Mortgage Loan (including underwritten figures), and the Special Servicer's
obligations hereunder shall be subject to its having received all such reports.
The applicable Master Servicer and Special Servicer shall forward to the other
and the Directing Certificateholder electronically monthly all operating
statements and rent rolls received from any Mortgagor from the prior month. All
CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment Worksheets
shall be maintained by the applicable Master Servicer with respect to each
Mortgaged Property and REO Property, and such Master Servicer shall forward
copies (in hard copy, electronic format or make available on its Internet
website) thereof and the related operating statements or rent rolls (in each
case, promptly following the initial preparation and each material revision
thereof) to the Paying Agent (in electronic format only), the Directing
Certificateholder (and with respect to a Loan Pair, to the related Companion
Holder) and the Special Servicer. The Paying Agent shall, upon request and to
the extent such items have been delivered to the Paying Agent by the applicable
Master Servicer, deliver to the Underwriters, the Rating Agencies, the Mortgage
Loan Sellers, any Certificateholder or, to the extent the Certificate Registrar
has confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of such CMSA Operating Statement Analysis Report (or
update thereof) and CMSA NOI Adjustment Worksheet (or update thereof), upon
written request, and the related operating statement or rent rolls. The
applicable Master Servicer shall maintain a CMSA Operating Statement Analysis
Report and a CMSA NOI Adjustment Worksheet with respect to each Mortgaged
Property and REO Property.
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the applicable Master Servicer and the Directing
Certificateholder the CMSA Special Servicer Loan File with respect to the
Specially Serviced Mortgage Loans and any REO Properties, providing the
information required of the Special Servicer in an electronic format, reasonably
acceptable to such Master Servicer as of the Business Day preceding such
Determination Date, which CMSA Special Servicer Loan File shall include data, to
enable such Master Servicer to produce the following CMSA Supplemental Reports:
(i) a CMSA Delinquent Loan Status Report, (ii) a CMSA Historical Liquidation
Report, (iii) a CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (iv) a CMSA REO Status Report, (v) a CMSA Comparative Financial Status
Report and (vi) a CMSA NOI Adjustment Worksheet and a CMSA Operating Statement
Analysis Report.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date, beginning in August 2006, the applicable Master Servicer shall prepare (if
and to the extent necessary) and deliver or cause to be delivered in electronic
format to the Paying Agent the following reports and data files: (i) to the
extent the applicable Master Servicer has received the CMSA Special Servicer
Loan File at the time required, the most recent CMSA Delinquent Loan Status
Report, CMSA Historical Liquidation Report, CMSA Historical Loan Modification
and Corrected Mortgage Loan Report, and CMSA REO Status Report, (ii) the most
recent CMSA Property File, and CMSA Comparative Financial Status Report (in each
case incorporating, to the extent the Master Servicer has received the CMSA
Special Servicer Loan File, the data required to be included in the CMSA Special
Servicer Loan File pursuant to Section 3.12(d) by the Special Servicer and
Master Servicer), (iii) a CMSA Servicer Watch List with information that is
current as of such Determination Date, (iv) CMSA Financial File, (v) CMSA Loan
Level Reserve LOC Report, (vi) the Realized Loss Report and (vii) the CMSA
Advance Recovery Report. Not later than 2:00 p.m. (New York City time) two (2)
Business Days prior to the Distribution Date, the applicable Master Servicer
shall deliver or cause to be delivered to the Paying Agent via electronic format
the CMSA Loan Setup File (with respect to the first Distribution Date) and the
CMSA Loan Periodic Update File. In no event shall any report described in this
subsection be required to reflect information that has not been collected by or
delivered to the applicable Master Servicer, or any payments or collections not
received by the applicable Master Servicer, as of the Business Day prior to the
Business Day on which the report is due.
(f) The Special Servicer shall deliver to the Master Servicers the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and each Master Servicer shall deliver to the Paying Agent the reports
and data files set forth in Section 3.12(e). Each Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The Paying
Agent may, absent manifest error, conclusively rely on the reports and/or data
to be provided by each Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by any Master Servicer to the Paying
Agent pursuant to Section 3.12(e), to the extent that such information or
reports are, in turn, based on information or reports to be provided by the
Special Servicer pursuant to Section 3.12(c) or Section 3.12(d) and to the
extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(c) or Section 3.12(d), such Master Servicer
shall have no obligation to provide such information or reports to the Paying
Agent until it has received the requisite information or reports from the
Special Servicer, and such Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(e) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of any
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent such Master Servicer or Special Servicer so
fails because such disclosure, in the reasonable belief of such Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a Mortgage Loan document prohibiting disclosure of information
with respect to the Mortgage Loans or Mortgaged Properties. Each Master Servicer
and Special Servicer may disclose any such information or any additional
information to any Person so long as such disclosure is consistent with
applicable law and the Servicing Standards. Each Master Servicer or the Special
Servicer may affix to any information provided by it any disclaimer it deems
appropriate in its reasonable discretion (without suggesting liability on the
part of any other party hereto).
(h) Unless otherwise specifically stated herein, if any Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, such Master Servicer or the
Special Servicer, as the case may be, may satisfy such obligation by (x)
physically delivering a paper copy of such statement, report or information, (y)
delivering such statement, report or information in a commonly used electronic
format or (z) except with respect to information to be provided to the Paying
Agent and the Directing Certificateholder, making such statement, report or
information available on such Master Servicer's or the Special Servicer's
Internet website, unless this Agreement expressly specifies a particular method
of delivery.
Notwithstanding the foregoing, each Master Servicer and the Special
Servicer shall deliver any statements, reports or other information to the
Paying Agent in an electronic format mutually agreeable to the Paying Agent and
such Master Servicer, or the Special Servicer as the case may be. Each Master
Servicer or the Special Servicer may physically deliver a paper copy of any such
statement, report or information as a temporary measure due to system problems.
Section 3.13 [RESERVED]
Section 3.14 [RESERVED]
Section 3.15 Access to Certain Information. Each of the Master
Servicers and the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Paying Agent, the
Depositor, each Mortgage Loan Seller, each Rating Agency, the Directing
Certificateholder to the applicable Master Servicer, or to the Special Servicer,
as applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and to each Holder of a Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q
or Class NR Certificate, and to each Companion Holder (solely with respect to
the related AB Mortgage Loan or the One & Two Prudential Plaza Mortgage Loan, as
applicable) access to any documentation or information regarding the Mortgage
Loans and related Companion Loans and the Trust Fund within its control which
may be required by this Agreement or by applicable law. At the election of each
Master Servicer or the Special Servicer, such access may be afforded to such
Person identified above by the delivery of copies of information as requested by
such Person and such Master Servicer or the Special Servicer shall be permitted
to require payment (other than from the Directing Certificateholder, of a sum
sufficient to cover the reasonable out-of-pocket costs incurred by it in making
such copies. Such access shall (except as described in the preceding sentence)
be afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of each Master Servicer or the
Special Servicer, as the case may be, designated by it; provided, however, that
Certificateholders and Certificate Owners shall be required to pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information. The failure of any Master Servicer
or the Special Servicer to provide access as provided in this Section 3.15 as a
result of a confidentiality obligation shall not constitute a breach of this
Section 3.15; provided that nothing in this paragraph shall provide a basis for
not providing to the Directing Certificateholder any information specifically
required to be delivered to it under the terms of this Agreement. The Master
Servicers and the Special Servicer may each deny any of the foregoing persons
access to confidential information or any intellectual property which such
Master Servicer or the Special Servicer is restricted by license or contract
from disclosing. In connection with providing access to information pursuant to
this Section 3.15 to parties other than the Trustee or the Paying Agent, each
Master Servicer and the Special Servicer may each (i) affix a reasonable
disclaimer to any information provided by it for which it is not the original
source (without suggesting liability on the part of any other party hereto);
(ii) affix to any information provided by it a reasonable statement regarding
securities law restrictions on such information and/or condition access to
information on the execution of a reasonable confidentiality agreement; (iii)
withhold access to confidential information or any intellectual property; and
(iv) withhold access to items of information contained in the Servicing File for
any Mortgage Loan if the disclosure of such items is prohibited by applicable
law or the provisions of any related Mortgage Loan documents or would constitute
a waiver of the attorney-client privilege. Notwithstanding any provision of this
Agreement to the contrary, the failure of any Master Servicer or the Special
Servicer to disclose any information otherwise required to be disclosed by it
pursuant to this Agreement shall not constitute a breach of this Agreement to
the extent that such Master Servicer or the Special Servicer, as the case may
be, determines, in its reasonable good faith judgment consistent with the
applicable Servicing Standards, that such disclosure would violate applicable
law or any provision of a Mortgage Loan document or Companion Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or
Companion Loans or the Mortgaged Properties, constitute a waiver of the
attorney-client privilege on behalf of the Trust or the Trust Fund or otherwise
materially harm the Trust or the Trust Fund.
Section 3.16 Title to REO Property; REO Account. (a) If title to any
REO Property is acquired, the deed or certificate of sale shall be issued to the
Trustee or a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. The Special Servicer, on behalf
of the Trust Fund shall sell any REO Property prior to the close of the third
calendar year following the year in which the Trust Fund acquires ownership of
such REO Property, within the meaning of Treasury Regulations Section
1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such REO Property or (ii) obtains for
the Trustee, the Paying Agent and the applicable Master Servicer an Opinion of
Counsel, addressed to the Trustee, the Paying Agent and the applicable Master
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the close of the third calendar year following the year in which
such acquisition occurred will not cause the imposition of a tax on the
Upper-Tier REMIC or the Lower-Tier REMIC or cause the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell such REO Property within such longer period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any expense incurred
by the Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be an expense of the Trust Fund payable out of the applicable Certificate
Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Class A-3FL Regular Interest and
Uncertificated Lower-Tier Interests), for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within 1 Business Day after receipt, all REO Revenues, Insurance
and Condemnation Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the applicable Master Servicer of the location of the REO Account
when first established and of the new location of the REO Account prior to any
change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the applicable Master Servicer, which shall deposit into its related
Certificate Account (or such subaccount of the applicable Certificate Account
for each Companion Loan, as applicable), the aggregate of all amounts received
in respect of each REO Property during the most recently ended Due Period, net
of (i) any withdrawals made out of such amounts pursuant to the preceding
sentence and (ii) Net Investment Earnings on amounts on deposit in the REO
Account; provided, however, that the Special Servicer may retain in such REO
Account, in accordance with the Servicing Standards, such portion of such
balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, on or prior to each
Determination Date, the Special Servicer shall provide the applicable Master
Servicer with a written accounting of amounts remitted to the such Master
Servicer for deposit in its related Certificate Account, as applicable, on such
date. The applicable Master Servicer shall apply all such amounts as instructed
by the Special Servicer on the Determination Date for the related Distribution
Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (a) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Class A-3FL Regular Interest and the Uncertificated Lower-Tier Interests) solely
for the purpose of its timely disposition and sale in a manner that does not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust
Fund or any holder of the One & Two Prudential Plaza A2 Note of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event or a similar event involving any commercial
mortgage securitization trust that holds the One & Two Prudential Plaza A2 Note
or other Companion Loan. Subject to the foregoing, however, the Special Servicer
shall have full power and authority to do any and all things in connection
therewith as are in the best interests of and for the benefit of the
Certificateholders (and, in the case of each Loan Pair, the related Companion
Holder(s)) and the Trustee (as holder of the Class A-3FL Regular Interest and
the Uncertificated Lower-Tier Interests) all as a collective whole (as
determined by the Special Servicer in its reasonable judgment in accordance with
the Servicing Standards and any related Intercreditor Agreements). Subject to
this Section 3.17, the Special Servicer may allow the Trust Fund to earn "net
income from foreclosure property" within the meaning of Section 860G(d) of the
Code if it determines that earning such income is in the best interests of
Certificateholders and, if applicable, any related Companion Holder(s) on a net
after-tax basis as compared with net leasing such REO Property or operating such
REO Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than 1 Business Day following receipt of such funds) in the applicable REO
Account all revenues received by it with respect to each REO Property and the
related REO Loan, and shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the applicable Master Servicer
(subject to receiving notice from the Special Servicer in accordance with the
procedures set forth elsewhere in this Agreement) shall advance from its own
funds such amount as is necessary for such purposes unless (as evidenced by an
Officer's Certificate delivered to the Trustee, the Depositor, the Paying Agent
and the Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the applicable Master Servicer as a
Servicing Advance) to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held for the benefit of
the Trust Fund, or, if applicable, any commercial mortgage securitization that
holds the One & Two Prudential Plaza A2 Note or other Companion Loan in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the applicable Master Servicer a statement
prepared by the Special Servicer setting forth the amount of net income or net
loss, as determined for federal income tax purposes, resulting from the
operation and management of a trade or business on, the furnishing or rendering
of a non-customary service to the tenants of, or the receipt of any other amount
not constituting Rents from Real Property in respect of, any REO Property in
accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Servicing Standards; provided, however, that such determination shall be made
without taking into account any effect the restrictions on the sale of such
Mortgage Loan contained herein may have on the value of such Defaulted Mortgage
Loan; provided, further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer may, from time to time, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with a review of such
circumstances and new information in accordance with the Servicing Standards,
conducted not less often than every 90 days. The Special Servicer shall notify
the Trustee, the Master Servicers, the Paying Agent and the Certificateholder
that owns the largest aggregate Certificate Balance of the Controlling Class
(the "Controlling Class Option Holder") and the One & Two Prudential Plaza A2
Noteholder and, if applicable, the related Companion Holder, promptly upon its
making a fair value determination and any subsequent adjustment thereto. The
Special Servicer shall also deliver to the Master Servicers, the Rating Agencies
and the Controlling Class Option Holder and the One & Two Prudential Plaza A2
Noteholder and, if applicable, the related Companion Holder (to the extent such
parties have not already received), the most recent Appraisal of the related
Mortgaged Property then in the Special Servicer's possession, together with such
other third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). If the Special Servicer will not
be determining whether the Option Price represents fair value of the Defaulted
Mortgage Loan, pursuant to the penultimate paragraph of Section 3.18(a)(iv), the
Special Servicer shall also deliver the Determination Information to the
Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d) and (e) of
this Section 3.18, at the time a Mortgage Loan becomes a Defaulted
Mortgage Loan, the Special Servicer and Controlling Class Option Holder
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the related Master Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Reimbursement
Rate to the extent not included in (1) above, and (4) all accrued Special
Servicing Fees and additional Trust Fund expenses allocable to such
Defaulted Mortgage Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of
such Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee, the
Paying Agent and the Master Servicers of such transfer and such notice
shall include the transferee's name, address, telephone number, facsimile
number and appropriate contact person(s) and shall be acknowledged in
writing by the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout or
(D) subject to the applicable Master Servicer's determination set forth in
clause (iv) below, upon another Option Holder's exercise of its Purchase
Option with respect to the related Mortgage Loan becoming effective
pursuant to clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicers, the Paying Agent and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit J, which notice
shall identify the Person that, on its own or through an Affiliate, will
acquire the related Mortgage Loan upon closing and shall specify a cash
exercise price at least equal to the Option Price. The Purchase Option
Notice shall be delivered in the manner specified in Section 11.05.
Immediately upon receipt of such Purchase Option Notice, the Special
Servicer shall notify the remaining Option Holders that a Purchase Option
has been exercised. Within ten (10) days thereafter, each remaining Option
Holder may submit to the Special Servicer a Purchase Option Notice for the
related Defaulted Mortgage Loan. Upon the expiration of such ten (10) day
period, or such sooner time as all remaining Option Holders have submitted
Purchase Option Notices, the Special Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price
that the exercise of its Purchase Option is effective. The Special
Servicer shall also notify the Trustee of such effective exercise. In the
event that more than one Option Holder exercises its Purchase Option at
the same price, the Purchase Option Notice from the Controlling Class
Option Holder or its assignee or if none, then the first Purchase Option
Notice received by the Special Servicer shall be effective. The exercise
of any Purchase Option pursuant to this clause (iii) shall be irrevocable;
provided that the assignor of the Purchase Option shall have no liability
to the Trust or any other party hereto for the failure of its third party
assignee to close the sale of the Defaulted Mortgage Loan after its
exercise of the option, and upon such failure, the Purchase Option shall
revert to the Option Holder as provided herein as if the Purchase Option
had not been exercised, and the Special Servicer shall pursue against such
assignee whatever remedies it may have against the assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the applicable Master Servicer shall determine as soon as
reasonably practicable (and, in any event, within thirty (30) days) after
such Master Servicer has received the written notice and the Determination
Information to be provided to such Master Servicer by the Special Servicer
under Section 3.18(a)(i), whether the Option Price represents fair value
for the Defaulted Mortgage Loan; provided that, if the Special Servicer is
then in the process of obtaining a new Appraisal with respect to the
related Mortgaged Property, then such Master Servicer shall make its fair
value determination with respect to such Mortgage Loan as soon as
reasonably practicable (but in any event within thirty (30) days) after
such Master Servicer's receipt of such new Appraisal. Such fair value
determination shall be made in accordance with Servicing Standards. In
determining the fair value of any Defaulted Mortgage Loan, the applicable
Master Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the
local economy in the area where the Mortgaged Property is located, and the
time and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the applicable Master Servicer shall
refer to the Determination Information and all other relevant information
delivered to it by the Special Servicer or otherwise contained in the
Mortgage File; provided that such Master Servicer shall take account of
any change in circumstances regarding the related Mortgaged Property known
to such Master Servicer that has occurred subsequent to, and that would,
in such Master Servicer's reasonable judgment, materially affect the value
of the related Mortgaged Property reflected in, such appraisal.
Furthermore, the applicable Master Servicer shall consider all available
objective third-party information obtained from generally available
sources, as well as information obtained from vendors providing real
estate services to the applicable Master Servicer, concerning the market
for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The applicable Master Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such
determination. The applicable Master Servicer shall be entitled to receive
out of the applicable Certificate Account as additional compensation a
reasonable fee, not to exceed $2,500 plus reasonable out-of-pocket costs
and expenses, for each determination made in accordance with this clause
(iv), provided, however, with respect to any Mortgage Loan, such fee shall
be collectible once in any six-month period. The reasonable cost of all
third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably
incurred by the applicable Master Servicer pursuant to this Section
3.18(a)(iv) shall constitute, and be reimbursable as, Servicing Advances;
provided that the applicable Master Servicer may rely on the most current
Appraisal and property inspection report obtained for the related
Mortgaged Property pursuant to Section 3.12. The other parties to this
Agreement shall cooperate with all reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the applicable Master Servicer and the Special Servicer
are Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an Independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. The Trustee may pay such third
party a fee of up to $2,500. The reasonable costs of such Independent
third party appraisals, all inspection reports and broker opinions of
value, reasonably incurred by the Trustee or any such third party pursuant
to this paragraph shall be advanced by the applicable Master Servicer and
shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Trustee's designating an Independent third party, the
Special Servicer shall deliver to the Trustee for such Independent third
party's use the Determination Information.
In the event the applicable Master Servicer or any designated third
party, as applicable, determines that the Option Price is less than the
fair value of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the applicable Master Servicer and the Trustee
shall provide the notices described in the second paragraph of clause (v)
below and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the applicable Master Servicer
within ten (10) Business Days of its receipt of the Special Servicer's
notice confirming that the exercise of its Purchase Option is effective.
Upon receipt of an Officer's Certificate from the Special Servicer
specifying the date for closing the purchase of the related Defaulted
Mortgage Loan, and the purchase price to be paid therefor, the Trustee
shall deliver at such closing for release to or at the direction of such
Option Holder, the related Mortgage File, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
as shall be provided to it by such Option Holder and are reasonably
necessary to vest in the purchaser or any designee thereof the ownership
of such Mortgage Loan on a servicing released basis. In connection with
any such purchase by any Person other than it, the Special Servicer shall
deliver the related Mortgage File to or at the direction of the purchaser.
In any case, the applicable Master Servicer shall deposit the purchase
price (except that portion of any purchase price constituting Gain-on-Sale
Proceeds which shall be deposited in the Gain-on-Sale Reserve Account)
into the applicable Certificate Account within one (1) Business Day
following the closing of the sale of the related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise
its purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special Servicer
shall pursue such other resolution strategies with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate, consistent with
the Asset Status Report and the Servicing Standards and the REMIC
Provisions; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a
related Purchase Option or as otherwise permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Loan Pair, such purchase shall be a
purchase of the entire REO Property, including the portion relating to the
Companion Loans). The Special Servicer may also offer to sell to any Person any
REO Property (in the case of a Loan Pair, such sale shall be a sale of the
entire REO Property, including the portion relating to the Companion Loans), if
and when the Special Servicer determines, consistent with the Servicing
Standards, that such a sale would be in the best economic interests of the Trust
Fund and the Companion Holders. The Special Servicer shall give the Trustee, the
applicable Master Servicer, each related Companion Holder, the Paying Agent and
the Directing Certificateholder not less than five (5) Business Days' prior
written notice of the Purchase Price and its intention to (i) purchase any REO
Property at the Purchase Price therefor or (ii) sell any REO Property, in which
case the Special Servicer shall accept the highest offer received from any
Person for any REO Property in an amount at least equal to the Purchase Price
therefor. To the extent permitted by applicable law, and subject to the
Servicing Standards, the applicable Master Servicer, an Affiliate of such Master
Servicer, the Special Servicer or an Affiliate of the Special Servicer, or an
employee of either of them may act as broker in connection with the sale of any
REO Property and may retain from the proceeds of such sale a brokerage
commission that does not exceed the commission that would have been earned by an
independent broker pursuant to a brokerage agreement entered into at arm's
length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with the Servicing Standards,
that rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to the Servicing Standards, the Special Servicer shall
act on behalf of the Trust Fund and the Companion Holders in negotiating
and taking any other action necessary or appropriate in connection with
the sale of any REO Property, including the collection of all amounts
payable in connection therewith. A sale of any REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Depositor, the applicable Master Servicer, the Special Servicer, the
Paying Agent or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust
Fund) and, if consummated in accordance with the terms of this Agreement,
none of the applicable Master Servicer, the Special Servicer, the
Depositor, the Paying Agent nor the Trustee shall have any liability to
the Trust Fund or any Certificateholder or Companion Holder with respect
to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, the Companion
Holder will have the right to purchase the related AB Mortgage Loan, as
applicable, or related REO Property. With respect to each AB Mortgage Loan, such
right of the Companion Holder shall be given priority over any provision
described in this Section 3.18, subject, to the extent applicable, to any rights
of a mezzanine lender as set forth in Section 3.18(e). If the AB Mortgage Loan
or REO Property is purchased by the Companion Holder, repurchased by the
applicable Mortgage Loan Seller or otherwise ceases to be subject to this
Agreement, the related Companion Loan will no longer be subject to this
Agreement. None of the Trustee, the Paying Agent, the Master Servicers nor the
Trust Fund shall acquire a Companion Loan.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as and to the extent set forth in the related
mezzanine intercreditor agreement.
(f) In the event any Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither such Master Servicer nor the Special
Servicer shall exercise such right.
Section 3.19 Additional Obligations of the Applicable Master
Servicer and Special Servicer. (a) The applicable Master Servicer shall deliver
all Compensating Interest Payments on the Mortgage Loans that it is responsible
for servicing hereunder to the Paying Agent for deposit in the Distribution
Account on each P&I Advance Date, without any right of reimbursement therefor.
(b) The applicable Master Servicer shall provide to each Companion
Holder any reports or notices required to be delivered to such Companion Holder
pursuant to the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the applicable Certificate Account and available for
distribution on the next Distribution Date, the applicable Master Servicer or
the Trustee, each at its own option and in its sole discretion, as applicable,
instead of obtaining reimbursement for the remaining amount of such
Nonrecoverable Advance pursuant to Section 3.05(a)(v) immediately, as an
accommodation may elect to refrain from obtaining such reimbursement for such
portion of the Nonrecoverable Advance during the one month collection period
ending on the then current Determination Date, for successive one-month periods
for a total period not to exceed 12 months and any election to so defer or not
to defer shall be deemed to be in accordance with the Servicing Standards. If
any Master Servicer (or the Trustee) makes such an election at its sole option
and in its sole discretion to defer reimbursement with respect to all or a
portion of a Nonrecoverable Advance (together with interest thereon), then such
Nonrecoverable Advance (together with interest thereon) or portion thereof shall
continue to be fully reimbursable in the subsequent collection period (subject,
again, to the same sole option to defer; it is acknowledged that, in such a
subsequent period, such Nonrecoverable Advance shall again be payable first from
principal collections as described above prior to payment from other
collections). In connection with a potential election by any Master Servicer (or
the Trustee) to refrain from the reimbursement of a particular Nonrecoverable
Advance or portion thereof during the one month collection period ending on the
related Determination Date for any Distribution Date, such Master Servicer (or
the Trustee) shall further be authorized to wait for principal collections on
the Mortgage Loans to be received before making its determination of whether to
refrain from the reimbursement of a particular Nonrecoverable Advance or portion
thereof) until the end of such collection period; provided, however, if, at any
time the applicable Master Servicer or the Trustee, as the case may be, elects
not to refrain from obtaining such reimbursement or otherwise determines that
the reimbursement of a Nonrecoverable Advance during a one-month collection
period will exceed the full amount of the principal portion of general
collections deposited in the Collection Accounts for such Distribution Date,
then the applicable Master Servicer or the Trustee, as applicable, shall use its
reasonable efforts to give Xxxxx'x, S&P and Fitch 15 days' notice of such
determination, unless (A) in the case of such a determination made by Master
Servicer No. 1, extraordinary circumstances make such notice impractical or (B)
in the case of such a determination made by Master Servicer No. 2 or the
Trustee, (1) Master Servicer No. 2 or the Trustee, as applicable, determines in
its sole discretion that waiting 15 days after such a notice could jeopardize
such Master Servicer's or the Trustee's ability, as applicable, to recover such
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to such Master Servicer or the Trustee, as applicable,
that could affect or cause a determination of whether any Advance is a
Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable
Advance or the determination in clause (1) above, or (3) Master Servicer No. 2
has not timely received from the Trustee information requested by such Master
Servicer to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
Master Servicer No. 2 or the Trustee, as applicable, shall give Fitch, Xxxxx'x
and S&P notice of an anticipated reimbursement to it of Nonrecoverable Advances
from amounts in the Certificate Account or Distribution Account, as applicable,
allocable to interest on the Mortgage Loans as soon as reasonably practicable in
such circumstances. Master Servicer No. 2 or the Trustee, as applicable, shall
have no liability for any loss, liability or expense resulting from any notice
provided to Fitch, Xxxxx'x and S&P contemplated by the immediately preceding
sentence. Nothing herein shall give any Master Servicer or the Trustee the right
to defer reimbursement of a Nonrecoverable Advance to the extent of any
principal collections then available in the Certificate Accounts pursuant to
Section 3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, that the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to any Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standards and/or with respect to the Trustee, constitute a violation of any
fiduciary duty to Certificateholders or any contractual obligation hereunder. If
any Master Servicer or the Trustee, as applicable, determines, in its sole
discretion, that its ability to fully recover the Nonrecoverable Advances has
been compromised, then such Master Servicer or the Trustee, as applicable, shall
be entitled to immediate reimbursement of Nonrecoverable Advances with interest
thereon at the Reimbursement Rate from all amounts in its Certificate Account or
such other Master Servicer's Certificate Account (if amounts in such Master
Servicer's Certificate Account are not sufficient for such reimbursement) for
such Distribution Date (deemed first from principal and then interest). Any such
election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The applicable Master
Servicer's or the Trustee's, as the case may be, decision to defer reimbursement
of such Nonrecoverable Advances as set forth above is an accommodation to the
Certificateholders and shall not be construed as an obligation on the part of
such Master Servicer or the Trustee, as applicable, or a right of the
Certificateholders. Nothing herein shall be deemed to create in the
Certificateholders a right to prior payment of distributions over the applicable
Master Servicer's or the Trustee's, as applicable, right to reimbursement for
Advances (deferred or otherwise) and accrued interest thereon. In all events,
the decision to defer reimbursement or to seek immediate reimbursement of
Nonrecoverable Advances shall be deemed to be in accordance with the Servicing
Standards and none of the Master Servicers, the Trustee or the other parties to
this Agreement shall have any liability to one another or to any of the
Certificateholders or any of the Companion Holders for any such election that
such party makes as contemplated by this section or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), Section 3.20(j) and Section 6.07 but subject
to any other conditions set forth thereunder, and, with respect to an AB
Mortgage Loan, subject to the rights of the related Companion Holder to advise
the applicable Master Servicer with respect to, or consent to, a modification,
waiver or amendment pursuant to the terms of the related Intercreditor
Agreement, the Master Servicers shall not modify, waive or amend a Mortgage Loan
and/or a Companion Loan without the prior written consent of the Special
Servicer; provided that, the applicable Master Servicer shall forward to the
Special Servicer requests to extend the maturity date of a Mortgage Loan and/or
Companion Loan that is not a Specially Serviced Mortgage Loan, and the Special
Servicer may approve such request, provided, further, that except as provided in
the following sentence, no such extension entered into pursuant to this Section
3.20(a) shall extend the Maturity Date beyond the earlier of (i) two years prior
to the Rated Final Distribution Date and (ii) in the case of a Mortgage Loan
secured by a leasehold estate and not also the related fee interest, the date
twenty years or, to the extent consistent with the Servicing Standards giving
due consideration to the remaining term of the ground lease, ten years, prior to
the expiration of such leasehold estate. If such extension would extend the
Maturity Date of a Mortgage Loan and/or Companion Loan for more than twelve
months from and after the original Maturity Date of such Mortgage Loan and/or
Companion Loan and such Mortgage Loan and/or Companion Loan is not in default or
default with respect thereto is not reasonably foreseeable, the applicable
Master Servicer must provide the Trustee, the Special Servicer and the Directing
Certificateholders with an Opinion of Counsel (at the expense of the related
Mortgagor to the extent permitted under the Mortgage Loan documents and, if not
required to be paid by the Mortgagor, from the Certificate Account as an expense
of the Trust) that such extension would not constitute a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b). Notwithstanding the foregoing, the
applicable Master Servicer, with respect to Non-Specially Serviced Mortgage
Loans that it is responsible for servicing, without the consent of the Special
Servicer, may modify or amend the terms of any Mortgage Loan and/or Companion
Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or
supplement any provisions therein which may be inconsistent with any other
provisions therein or correct any error, provided that, if the Mortgage Loan
and/or Companion Loan is not in default or default with respect thereto is not
reasonably foreseeable, such modification or amendment would not be a
"significant modification" of the Mortgage Loan and/or Companion Loan within the
meaning of Treasury Regulations Section 1.860G-2(b).
Subject to Section 6.07 herein, applicable law and the Mortgage Loan
or Companion Loan documents, neither the applicable Master Servicer nor the
Special Servicer shall permit the substitution of any Mortgaged Property (or any
portion thereof) for one or more other parcels of real property at any time the
Mortgage Loan and/or Companion Loan is not in default pursuant to the terms of
the related Mortgage Loan and/or Companion Loan documents or default with
respect thereto is not reasonably foreseeable unless (i) such Master Servicer or
the Special Servicer, as applicable, obtains from each Rating Agency (and
delivers to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates or if applicable, any class
of Companion Loan Securities and (ii) either (a) such substitution is at the
unilateral option of the Mortgagor or otherwise occurs automatically pursuant to
the terms of the Mortgage Loan in effect on the Startup Day, within the meaning
of Treasury Regulations Section 1.1001-3, or (b) it has received an Opinion of
Counsel to the effect that such substitution would not be a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan and/or Companion Loan or otherwise, the release of collateral
or the pledge of additional collateral) of the terms of a Specially Serviced
Mortgage Loan with respect to which a payment default or other material default
has occurred or a payment default or other material default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is reasonably likely to produce a greater
recovery on a net present value basis (the relevant discounting to be performed
at the related Mortgage Rate) to the Trust and, if applicable, the Companion
Holders as the holders of such Companion Loans than liquidation of such
Specially Serviced Mortgage Loan, then the Special Servicer may agree to a
modification, waiver or amendment of such Specially Serviced Mortgage Loan,
subject to (x) the provisions of this Section 3.20(b) and Section 3.20(c), (y)
the approval of the Directing Certificateholder as provided in Section 3.21 and
(z) with respect to an AB Mortgage Loan, the rights of the related Companion
Holder to advise the Special Servicer with respect to, or consent to, such
modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) The Special Servicer may not waive, modify or amend (or consent
to waive, modify or amend) any provision of a Mortgage Loan or Companion Loan
that is not in default or as to which default is not reasonably foreseeable
except for (1) the waiver of any due-on-sale clause or due-on-encumbrance clause
to the extent permitted in this Agreement, and (2) any waiver, modification or
amendment more than three months after the Closing Date that the Special
Servicer determines (which determination shall be based on consultation with
counsel and, if it is determined by the Special Servicer to be necessary, on an
Opinion of Counsel delivered to the Trustee and the Paying Agent (which shall be
obtained at the expense of the related Mortgagor or such other Person requesting
such modification or, if such expense cannot be collected from the related
Mortgagor or such other Person, the Special Servicer shall use its reasonable
efforts to collect such fee from the Mortgagor or such other Person to the
extent permitted under the related Mortgage Loan documents) and otherwise from
the Certificate Account as an expense of the Trust Fund) to the effect that the
contemplated waiver, modification or amendment (i) will not be a "significant
modification" of the Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b) and (ii) will not cause (x) either the Lower-Tier REMIC or
the Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or
(y) either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the
applicable Master Servicer nor the Special Servicer may waive the payment of any
Yield Maintenance Charge or the requirement that any prepayment of a Mortgage
Loan be made on a Due Date, or if not made on a Due Date, be accompanied by all
interest that would be due on the next Due Date with respect to any Mortgage
Loan or Companion Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification that creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
(other than the Class A-3FL Certificates) or the Class A-3FL Regular Interest
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the applicable Master Servicer and
the Special Servicer each may, as a condition to its granting any request by a
Mortgagor for consent, modification (including extensions), waiver or indulgence
or any other matter or thing, the granting of which is within such Master
Servicer's or the Special Servicer's, as the case may be, discretion pursuant to
the terms of the instruments evidencing or securing the related Mortgage Loan or
Companion Loan and is permitted by the terms of this Agreement, require that
such Mortgagor pay to such Master Servicer or the Special Servicer, as the case
may be, as additional servicing compensation, a reasonable or customary fee, for
the additional services performed in connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the applicable Master Servicer or
the Special Servicer, as the case may be, and the related Mortgagor (and by any
guarantor of the related Mortgage Loan, if such guarantor's signature is
required by the Special Servicer in accordance with the Servicing Standards).
(h) The applicable Master Servicer, only if it has any involvement
in modification, waiver or amendment of any term of any Mortgage Loan or
Companion Loan, or the Special Servicer shall notify the Rating Agencies, the
Trustee, the Directing Certificateholder, the Paying Agent, the related
Companion Holder, if applicable, and each other in writing of any modification,
waiver or amendment of any term of any Mortgage Loan or Companion Loan and the
date thereof, and shall deliver to the Trustee or the related Custodian for
deposit in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly (and in any event
within 10 Business Days) following the execution thereof. Following receipt of
the applicable Master Servicer's or the Special Servicer's, as applicable,
delivery of the aforesaid modification, waiver or amendment to the Paying Agent,
the Paying Agent shall forward a copy thereof to each Holder of a Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q and
Class NR Certificate upon request.
(i) [RESERVED].
(j) Notwithstanding the foregoing, neither the Master Servicers nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan or Companion Loan
unless such defeasance complies with Treasury Regulations Section 1.860G-2(a)(8)
and the applicable Master Servicer or the Special Servicer, as applicable, has
received (i) a certificate of an Independent certified public accountant to the
effect that such substituted property will provide cash flows sufficient to meet
all payments of interest and principal (including payments at maturity) on such
Mortgage Loan or Companion Loan in compliance with the requirements of the terms
of the related Mortgage Loan documents and, if applicable, Companion Loan
documents, (ii) one or more Opinions of Counsel (at the expense of the related
Mortgagor) to the effect that the Trustee, on behalf of the Trust Fund, will
have a first priority perfected security interest in such substituted Mortgaged
Property; provided, however, that, to the extent consistent with the related
Mortgage Loan documents and, if applicable, Companion Loan documents, the
related Mortgagor shall pay the cost of any such opinion as a condition to
granting such defeasance, (iii) to the extent consistent with the related
Mortgage Loan documents, the Mortgagor shall establish a single purpose entity
to act as a successor Mortgagor, if so required by the Rating Agencies, (iv) to
the extent permissible under the related Mortgage Loan documents and, if
applicable, Companion Loan documents, such Master Servicer or Special Servicer,
as applicable shall use its reasonable efforts to require the related Mortgagor
to pay all costs of such defeasance, including but not limited to the cost of
maintaining any successor Mortgagor and (v) to the extent permissible under the
Mortgage Loan documents and, if applicable, Companion Loan documents, such
Master Servicer or Special Servicer, as applicable shall obtain, at the expense
of the related Mortgagor, written confirmation from the Rating Agencies that
such defeasance will not cause the downgrade, withdrawal or modification of the
then current ratings of the Certificates (or, insofar as there is then
outstanding any class of Companion Loan Securities then rated by such Rating
Agency, such class of securities); provided, however, that (a) the applicable
Master Servicer or Special Servicer, as applicable shall not be required to
obtain such written confirmation: from S&P to the extent that the applicable
Master Servicer or the Special Servicer has delivered a defeasance certificate
substantially in the form of Exhibit T for any Mortgage Loan which (together
with any Mortgage Loans cross collateralized with such Mortgage Loans): (a) is
(A) not one of the ten largest Mortgage Loans by Stated Principal Balance, (B) a
Mortgage Loan with a Cut off Date Principal Balance less than $20,000,000 and
(C) a Mortgage Loan that represents less than 5% of the Cut-off Date Principal
Balance of all Mortgage Loans and (b) the applicable Master Servicer or Special
Servicer, as applicable shall not be required to obtain the Xxxxx'x confirmation
referenced in clause (v) above with respect to any Mortgage Loan which has a
Stated Principal Balance less than $20,000,000 and represents less than 5% of
the Stated Principal Balance of all the Mortgage Loans, so long as such Mortgage
Loan is not one of the ten largest Mortgage Loans by Stated Principal Balance.
Notwithstanding the foregoing, in the event that requiring the Mortgagor to pay
for the items specified in clauses (ii), (iv) and (v) in the preceding sentence
would be inconsistent with the related Mortgage Loan documents, such costs shall
be paid by the related Mortgage Loan Seller as set forth in the first paragraph
of Section 2.03(b) as a Trust Fund expense.
(k) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
applicable Master Servicer or the Special Servicer may permit the substitution
of "government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan or Companion Loan, as applicable, (or any portion thereof),
in lieu of the defeasance collateral specified in the related Mortgage Loan or
Companion Loan documents; provided that the applicable Master Servicer or the
Special Servicer reasonably determines that allowing their use would not cause a
default or event of default to become reasonably foreseeable and the applicable
Master Servicer or the Special Servicer receives an Opinion of Counsel (at the
expense of the Mortgagor to the extent permitted under the Mortgage Loan
documents and, if applicable, Companion Loan documents and, if not so permitted,
paid out of the Certificate Account) to the effect that such use would not be
and would not constitute a "significant modification" of such Mortgage Loan or
Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would
not otherwise constitute an Adverse REMIC Event with respect to any REMIC or a
similar event involving any commercial mortgage securitization trust that holds
the One & Two Prudential Plaza A2 Note and; provided further that the
requirements set forth in Section 3.20(j) (including the confirmation from each
Rating Agency that such defeasance would not cause the downgrade, withdrawal or
qualification of the then current ratings of the Certificates) are satisfied;
and provided further that such securities are backed by the full faith and
credit of the United States government, or the applicable Master Servicer or the
Special Servicer shall obtain a written confirmation of each Rating Agency that
the use of such securities will not result in the downgrade, withdrawal or
qualification of the then current ratings of any Class of Certificates
outstanding (or, insofar as there is then outstanding any class of Companion
Loan Securities that is then rated by such Rating Agency, such class of
securities).
(l) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, each Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by such Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall such Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by such Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, such Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall such Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
(m) Notwithstanding anything to the contrary in this Agreement,
neither the applicable Master Servicer nor the Special Servicer, as applicable,
shall, unless it has received prior written confirmation (the cost of which
shall be paid by the related Mortgagor, if so allowed by the terms of the
related loan documents and otherwise paid out of the Certificate Account) from
the Rating Agencies that such action will not result in a qualification,
downgrade or withdrawal of any of the ratings assigned by such Rating Agency to
the Certificates, grant or accept any consent, approval or direction regarding
the termination of the related property manager or the designation of any
replacement property manager, with respect to any Mortgaged Property that
secures a Mortgage Loan with an unpaid principal balance that is at least equal
to five percent (5%) of the then aggregate principal balance of all Mortgage
Loans or $20,000,000.
(n) Notwithstanding anything to the contrary in this Agreement,
neither the applicable Master Servicer nor the Special Servicer, as applicable,
shall consent to the incurrence by the related Mortgagor of any subordinate
financing or the pledging of any direct or indirect equity interests in such
Mortgagor as security for a mezzanine loan related to the Hyatt--Huntington
Beach Mortgage Loan, unless it has received prior written confirmation (the cost
of which shall be paid by the related Mortgagor, if so allowed by the terms of
the related loan documents and otherwise paid out of the Certificate Account)
from the Rating Agencies that such action will not result in a qualification,
downgrade or withdrawal of any of the ratings assigned by such Rating Agency to
the Certificates.
(o) Notwithstanding anything to the contrary in this Agreement,
neither the applicable Master Servicer nor the Special Servicer, as applicable,
shall, unless it has received prior written confirmation (the cost of which
shall be paid by the related Mortgagor, if so allowed by the terms of the
related loan documents and otherwise paid out of the Certificate Account) from
S&P that such action will not result in a qualification, downgrade or withdrawal
of any of the ratings assigned by S&P to the Certificates, consent to any
transfers of any direct or indirect equity interests of or control rights over
the related Mortgagor or to the entering into by the related Mortgagor of any
Insurance Policy with an insurer not rated "A" or better by S&P.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the applicable Master Servicer or the Special Servicer, as the
case may be, shall promptly give notice to the applicable Master Servicer or the
Special Servicer, as the case may be, and the Directing Certificateholder
thereof, and the applicable Master Servicer shall deliver the related Mortgage
File and Servicing File to the Special Servicer and shall use its reasonable
efforts to provide the Special Servicer with all information, documents and
records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Mortgage Loan and, if applicable, the
related Companion Loan, either in the applicable Master Servicer's possession or
otherwise available to such Master Servicer without undue burden or expense, and
reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto. Each Master Servicer shall use its
reasonable efforts to comply with the preceding sentence within 5 Business Days
of the occurrence of each related Servicing Transfer Event and in any event
shall continue to act as Master Servicer and administrator of such Mortgage Loan
and, if applicable, the related Companion Loan(s) until the Special Servicer has
commenced the servicing of such Mortgage Loan and, if applicable, the related
Companion Loan. Each Master Servicer shall deliver to the Trustee, the Paying
Agent and the Directing Certificateholder a copy of the notice of such Servicing
Transfer Event provided by such Master Servicer to the Special Servicer, or by
the Special Servicer to such Master Servicer, pursuant to this Section. The
Paying Agent shall deliver to each Controlling Class Certificateholder a copy of
the notice of such Servicing Transfer Event provided by the applicable Master
Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the applicable Master Servicer and the Directing Certificateholder and shall
return the related Mortgage File and Servicing File to the applicable Master
Servicer (or copies thereof if copies only were delivered to the Special
Servicer) and upon giving such notice, and returning such Mortgage File and
Servicing File to the applicable Master Servicer, the Special Servicer's
obligation to service such Corrected Mortgage Loan shall terminate and the
obligations of the Master Servicer to service and administer such Mortgage Loan
and, if applicable, the Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File to the extent within its possession (with a copy of each such
original to the applicable Master Servicer), and provide the applicable Master
Servicer with copies of any additional related Mortgage Loan or Companion Loan
information including correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), each Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties and
shall provide the Special Servicer with any information in its possession with
respect to such records to enable the Special Servicer to perform its duties
under this Agreement, provided that this statement shall not be construed to
require any Master Servicer to produce any additional reports.
(d) No later than 60 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the Companion Loan, the Special Servicer shall
deliver to the applicable Master Servicer, each Rating Agency, the Trustee, each
related Companion Holder, the Paying Agent and the Directing Certificateholder,
a report (the "Asset Status Report") with respect to such Mortgage Loan or
Companion Loan and the related Mortgaged Property; provided, however, the
Special Servicer shall not be required to deliver an Asset Status Report to the
Directing Certificateholder if they are the same entity. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable based on the information that was delivered to the Special Servicer
in connection with the transfer of servicing pursuant to the Servicing Transfer
Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the applicable Master Servicer for regular servicing or otherwise
realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder, does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law, the
Servicing Standards or the terms of the applicable Mortgage Loan documents. If
the Directing Certificateholder disapproves such Asset Status Report within ten
(10) Business Days of receipt, the Special Servicer will revise such Asset
Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the related Companion Holder, if applicable, the Trustee and the
applicable Master Servicer a new Asset Status Report as soon as practicable, but
in no event later than thirty (30) days after such disapproval. The Special
Servicer shall revise such Asset Status Report as described above in this
Section 3.21(d) until the Directing Certificateholder shall fail to disapprove
such revised Asset Status Report in writing within ten (10) Business Days of
receiving such revised Asset Status Report or until the Special Servicer makes
one of the determinations described below. Notwithstanding the foregoing, in the
event the Directing Certificateholder and the Special Servicer have been unable
to agree upon an Asset Status Report with respect to a Specially Serviced
Mortgage Loan within ninety (90) days, of the Directing Certificateholder's
receipt of the initial Asset Status Report, the Special Servicer, subject to the
rights of the related Companion Holder pursuant to the related Intercreditor
Agreement, if applicable, shall implement the actions described in the most
recent Asset Status Report submitted to the Directing Certificateholder by the
Special Servicer. The Special Servicer may, from time to time, modify any Asset
Status Report it has previously delivered and implement such report, provided
such report shall have been prepared, reviewed and not rejected pursuant to the
terms of this Section. Notwithstanding the foregoing, the Special Servicer (i)
may, following the occurrence of an extraordinary event with respect to the
related Mortgaged Property, take any action set forth in such Asset Status
Report before the expiration of a ten (10) Business Day period if the Special
Servicer has reasonably determined that failure to take such action would
materially and adversely affect the interests of the Certificateholders or, if a
Loan Pair is involved, the Companion Holder, and it has made a reasonable effort
to contact the Directing Certificateholder and (ii) in any case, shall determine
whether such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards. Each final Asset Status
Report shall be delivered to the applicable Master Servicer, the Trustee (upon
request), the related Companion Holder, if applicable, and each Rating Agency.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction or disapproval of the Directing Certificateholder shall
(a) require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standards and to maintain the REMIC status of each of the Lower-Tier
REMIC and the Upper-Tier REMIC, or (b) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions, or (c)
expose the Master Servicer, the Special Servicer, the Depositor, the Mortgage
Loan Sellers, the Trust Fund, the Trustee, the Paying Agent or their respective
officers, directors, employees or agents to any claim, suit or liability or (d)
materially expand the scope of the Special Servicer's, Trustee's or the Master
Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (v) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the applicable Master Servicer shall with reasonable promptness
give notice thereof, and shall use its reasonable efforts to provide the Special
Servicer with all information relating to the Mortgage Loan or Companion Loan
and reasonably requested by the Special Servicer to enable it to negotiate with
the related Mortgagor and prepare for any such proceedings. Each Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) Each Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations hereunder; provided that the
Sub-Servicing Agreement as amended or modified: (i) is consistent with this
Agreement in all material respects and requires the Sub-Servicer to comply with
all of the applicable conditions of this Agreement; (ii) provides that if such
Master Servicer shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), 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 such Master
Servicer under such agreement, or, alternatively, may act in accordance with
Section 7.02 hereof under the circumstances described therein (subject to
Section 3.22(g) hereof); (iii) provides that the Trustee for the benefit of the
Certificateholders, the related Companion Holder (if applicable) and the Trustee
(as holder of the Class A-3FL Regular Interest and the Uncertificated Lower-Tier
Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the applicable Master Servicer thereunder as contemplated by
the immediately preceding clause (ii)) none of the Trust Fund, the Trustee, the
Paying Agent, the Special Servicer, any successor Master Servicer or any
Certificateholder (or the related Companion Holder, if applicable) shall have
any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty; provided, however,
that the Initial Sub-Servicing Agreements may only be terminated by the Trustee
or its designees as contemplated by Section 3.22(g) hereof and in such
additional manner as is provided in such Sub-Servicing Agreement; (v) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund and (vi) does not permit the
Sub-Servicer to modify any Mortgage Loan unless and to the extent the applicable
Master Servicer is permitted hereunder to modify such Mortgage Loan. Any
successor Master Servicer hereunder shall, upon becoming successor Master
Servicer, be assigned and shall assume any Sub-Servicing Agreements from the
predecessor master servicer (subject to Section 3.22(g) hereof). In addition,
each Sub-Servicing Agreement entered into by any Master Servicer may but need
not provide that the obligations of the Sub-Servicer thereunder shall terminate
with respect to any Mortgage Loan serviced thereunder at the time such Mortgage
Loan becomes a Specially Serviced Mortgage Loan; provided, however, that the
Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement provides for
Advances by the Sub-Servicer, although it need not so provide) that the
Sub-Servicer will continue to make all Advances and calculations and prepare all
reports required under the Sub-Servicing Agreement with respect to Specially
Serviced Mortgage Loans and continue to collect its Primary Servicing Fees as if
no Servicing Transfer Event had occurred and with respect to REO Properties (and
the related REO Loans) as if no REO Acquisition had occurred and to render such
incidental services with respect to such Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for in such Sub-Servicing Agreement.
Each Master Servicer shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents. References in
this Agreement to actions taken or to be taken by any Master Servicer include
actions taken or to be taken by a Sub-Servicer on behalf of such Master
Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer
(if the Sub-Servicing Agreement provides for Advances by the Sub-Servicer,
although it need not so provide) to satisfy the obligations of such Master
Servicer hereunder to make Advances shall be deemed to have been advanced by
such Master Servicer out of its own funds and, accordingly, in such event, such
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were the applicable Master Servicer, and,
for so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(d), such interest to be allocable between the
applicable Master Servicer and such Sub-Servicer as may be provided (if at all)
pursuant to the terms of the Sub-Servicing Agreement. For purposes of this
Agreement, each Master Servicer shall be deemed to have received any payment
when a Sub-Servicer retained by it receives such payment. Each Master Servicer
shall notify the Special Servicer, the Trustee and the Depositor in writing
promptly of the appointment by it of any Sub-Servicer, except that such Master
Servicer need not provide such notice as to the Initial Sub-Servicing
Agreements.
(b) Each Sub-Servicer shall be 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 the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
applicable Master Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, each Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each of its Sub-Servicers under the
related Sub-Servicing Agreement. Subject to Sections 11.01 and 11.02, such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as is in accordance with the
Servicing Standards. Each Master Servicer shall have the right to remove a
Sub-Servicer retained by it in accordance with the terms of the related
Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of any Master Servicer
under any Sub-Servicing Agreement, such Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22 (except to the extent provided in Article XI with respect
to the obligations of any Sub-Servicer that is an Initial Sub-Servicer) the
Master Servicer shall remain obligated and responsible to the Trustee, the
Special Servicer, holders of the Companion Loans serviced hereunder and the
Certificateholders for the performance of such Master Servicer's obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible, and the Master
Servicer shall pay the fees of any Sub-Servicer under any Sub-Servicing
Agreement as and when due from its own funds. In no event shall the Trust Fund
bear any termination fee required to be paid to any Sub-Servicer as a result of
such Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate such
Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding
the foregoing or any other contrary provision in this Agreement, the Trustee and
any successor Master Servicer shall assume each Initial Sub-Servicing Agreement
and (i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the applicable Master Servicer pursuant to the
terms hereof (and within the same period of time required herein), within a
sufficient period of time to allow the Sub-Servicer to fulfill its obligations
under such Sub-Servicing Agreement and in no event later than 1 Business Day
prior to the applicable Determination Date (or such other date as specified
herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers. (a) Each Master Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders and to
the other Master Servicer, the Depositor, the Paying Agent and the Special
Servicer, as of the Closing Date, that:
(i) Such Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of California
(in the case of Master Servicer No. 1), or a national banking association,
duly organized, validly existing and in good standing under the laws of
the United States (in the case of Master Servicer No. 2), and such Master
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by such Master
Servicer, and the performance and compliance with the terms of this
Agreement by such Master Servicer, does not (A) violate the applicable
Master Servicer's organizational documents, (B) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or which is applicable to
it or any of its assets or (C) violate any law, rule, regulation, order,
judgment or decree to which such Master Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Master Servicer to perform
its obligations under this Agreement or its financial condition;
(iii) Such Master Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the applicable Master Servicer, enforceable against
such Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) Such Master Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in such
Master Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of such Master
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer which would
prohibit such Master Servicer from entering into this Agreement or, in
such Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of such Master Servicer
to perform its obligations under this Agreement or the financial condition
of such Master Servicer;
(vii) Such Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Master Servicer, or compliance by such Master Servicer
with, this Agreement or the consummation of the transactions of such
Master Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained or can be
obtained prior to the actual performance by such Master Servicer of its
obligations under this Agreement, or which, if not obtained would not have
a materially adverse effect on the ability of such Master Servicer to
perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor, the Paying Agent and the Master Servicers, as
of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Florida, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's articles of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto constitutes a valid, legal and
binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject (A) to
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment could reasonably be
expected to materially and adversely affect the ability of the Special
Servicer to perform its obligations under this Agreement;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c); and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, or which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December (unless, in either case, the
related Distribution Date will be the final Distribution Date), the Paying
Agent, in respect of the Actual/360 Mortgage Loans, shall deposit into the
Interest Reserve Account, an amount equal to one day's interest on the Stated
Principal Balance of the Interest Reserve Loans as of the Due Date occurring in
the month preceding the month in which such P&I Advance Date occurs at the
related Net Mortgage Rate, to the extent a full Monthly Payment or P&I Advance
is made in respect thereof (all amounts so deposited in any consecutive February
and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March (or in February of
the related Distribution Date will be the final Distribution Date), the Paying
Agent shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 Excess Interest Distribution Account. Prior to the
applicable Distribution Date, each Master Servicer is required to remit to the
Paying Agent for deposit into the Excess Interest Distribution Account an amount
equal to the Excess Interest received during the related Due Period.
Section 3.27 Directing Certificateholder Contact with Master
Servicers. No less often than on a monthly basis, each of the Master Servicers
and the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer via telephone available to verbally answer questions from the Directing
Certificateholder regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which such Master Servicer or the Special Servicer, as
the case may be, is responsible.
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Paying Agent and to notify the Master Servicers, the Paying Agent and Special
Servicer of the transfer of any Certificate of a Controlling Class, the
selection of a Directing Certificateholder or the resignation or removal
thereof. The Directing Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to notify the Master Servicers, Special
Servicer and Paying Agent when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) Once a Directing Certificateholder has been selected, each of
the Master Servicers, the Special Servicer, the Depositor, the Trustee, the
Paying Agent and each other Certificateholder (or Certificate Owner, if
applicable) shall be entitled to rely on such selection unless a majority of the
Controlling Class Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Master Servicers, Special Servicer,
the Trustee, the Paying Agent and each other Controlling Class
Certificateholder, in writing, of the resignation of such Directing
Certificateholder or the selection of a new Directing Certificateholder. Upon
the resignation of a Directing Certificateholder, the Paying Agent shall request
the Controlling Class Certificateholders to select a new Directing
Certificateholder.
(c) Until it receives notice to the contrary each of the Master
Servicers and the Trustee shall be entitled to rely on the most recent
notification with respect to the identity of the Controlling Class
Certificateholder, and the Directing Certificateholder.
(d) Upon request, the Paying Agent shall deliver to the Trustee, the
Special Servicer and the Master Servicers a list of each Controlling Class
Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Trustee, the Master Servicers and the Special Servicer.
Notwithstanding the foregoing, LNR Securities Holdings, LLC shall be the initial
Directing Certificateholder and the initial Controlling Class Certificateholder
and shall remain so until a successor is appointed pursuant to the terms of this
Agreement.
(e) Until it receives notice to the contrary, each of the Master
Servicers, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder and the Controlling Class Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository) of such event.
(g) With respect to the One & Two Prudential Plaza Whole Loan and
any approval and consent rights in this Agreement with respect to the One & Two
Prudential Plaza Whole Loan, the holder of the One & Two Prudential Plaza
Mortgage Loan shall exercise such rights in accordance with the One & Two
Prudential Plaza Intercreditor Agreement, provided that the Directing
Certificateholder may exercise the portion of such rights allocated to the One &
Two Prudential Plaza Mortgage Loan.
(h) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder may take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
(i) All requirements of the Master Servicers and the Special
Servicer to provide notices, reports, statements or other information (including
the access to information on a website) provided to the Directing
Certificateholder contained in this Agreement shall also apply to each Companion
Holder with respect to information relating to the related AB Mortgage Loan and
the One & Two Prudential Plaza A2 Noteholder with respect to information
relating to the One & Two Prudential Plaza Mortgage Loan.
Section 3.29 Intercreditor Agreements. Each of the Master Servicers
and Special Servicer acknowledges and agrees that each Loan Pair being serviced
under this Agreement and each Mortgage Loan with mezzanine debt is subject to
the terms and provisions of the related Intercreditor Agreement and/or related
mezzanine intercreditor agreement, as applicable, and each agrees to service
each such Loan Pair and each Mortgage Loan with mezzanine debt in accordance
with the related Intercreditor Agreement and/or related mezzanine intercreditor
agreement, as applicable, and this Agreement, including, without limitation,
effecting distributions and allocating reimbursement of expenses in accordance
with the related Intercreditor Agreement and, in the event of any conflict, the
related intercreditor agreement shall govern. Notwithstanding anything to the
contrary in this Agreement, each of the Master Servicers and Special Servicer
agrees not to take any action with respect to a Loan Pair or the related
Mortgaged Property without the prior consent of the related Companion Holder to
the extent that the related Intercreditor Agreement provides that such Companion
Holder is required to consent to such action. When the related Companion
Holder's consent to any such action is required under the related Intercreditor
Agreement, the Directing Certificateholder shall not have any consent rights
related to such Mortgage Loan. To the extent consistent with the Servicing
Standards, nothing herein shall be deemed to override the provisions of the
Intercreditor Agreements with respect to the rights of the Companion Holders
thereunder and in the event of any inconsistency between the provisions of an
Intercreditor Agreement and the provisions of this Agreement relating to the
rights and obligations of the Trustee, as holder of the related Mortgage Loan,
and the related Companion Holder, the Intercreditor Agreement shall control with
respect to such Loan Pair. Each of the Master Servicers and Special Servicer
acknowledges and agrees that each Companion Holder and mezzanine lender may have
the right to cure certain defaults with respect to the related AB Mortgage Loan
or Mortgage Loan, and to purchase the related AB Mortgage Loan or Mortgage Loan,
as applicable, in each case pursuant to the terms and conditions of the related
intercreditor agreement.
Notwithstanding any provision of this Agreement to the contrary,
consistent with the Servicing Standards, the servicing rights and obligations of
the Special Servicer with respect to the Mezz Cap AB Companion Loan will be
limited pursuant to the terms of the related Mezz Cap AB Intercreditor Agreement
prior to, or after the discontinuance of, a "Material Default" (as defined in
Section 3(b) of such Intercreditor Agreement).
Notwithstanding any provision of this Agreement to the contrary,
consistent with the Servicing Standard, neither the applicable Master Servicer
nor the Special Servicer shall accept from the related Mortgagor a Principal
Prepayment, in part, with respect to the Xxxxxxx PLC Building--Xxxxxxxx XX
Mortgage Loan unless refusing to accept such Principal Prepayment in part would
be contrary to the related Mortgage Loan documents or result in a qualification,
downgrade or withdrawal of any of the ratings assigned by a Rating Agency to the
Certificates.
Neither the Master Servicers nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such Intercreditor
Agreement. Notwithstanding any provision of any Intercreditor Agreement that may
otherwise require the Master Servicers or the Special Servicer to abide by any
instruction or direction of a Companion Holder, neither the Master Servicers nor
the Special Servicer shall be required to comply with any instruction or
direction the compliance with which requires an Advance that constitutes or
would constitute a Nonrecoverable Advance. In no event shall any expense arising
from compliance with an Intercreditor Agreement (or from compliance with any
intercreditor agreement with respect to a related mezzanine loan) constitute an
expense to be borne by the Master Servicers or Special Servicer for its own
account without reimbursement. In no event shall the Master Servicers or the
Special Servicer be required to consult with or obtain the consent of any
Companion Holder unless such Companion Holder has delivered notice of its
identity and contact information to each of the parties to this Agreement (upon
which notice each of the parties to this Agreement shall be conclusively
entitled to rely). As of the Closing Date, the contact information for the
Companion Holders is set forth in Section 11.05 under this Agreement. In no
event shall the Master Servicers or the Special Servicer be required to consult
with or obtain the consent of a new Directing Certificateholder or a new
Controlling Class Certificateholder if the Paying Agent has not delivered notice
to the Master Servicers or the Special Servicer as required under Section
3.28(d).
No direction or disapproval of the Companion Holders shall (a)
require or cause the Master Servicers or Special Servicer (i) to violate the
terms of a Mortgage Loan, applicable law or any provision of this Agreement or
(ii) to act, or fail to act, in any manner that is or would not be in accordance
with the Servicing Standards or that would in any way fail to maintain the REMIC
status of each of the Lower-Tier REMIC and the Upper-Tier REMIC or (b) result in
the imposition of a "prohibited transaction" or "prohibited contribution" tax
under the REMIC Provisions, or (c) materially expand the scope of the Special
Servicer's, Trustee's or each Master Servicer's responsibilities under this
Agreement.
Section 3.30 Companion Paying Agent. (a) Each Master Servicer shall
be the Companion Paying Agent with respect to the Companion Loans related to
Mortgage Loans that it is responsible for servicing hereunder. Each Companion
Paying Agent undertakes to perform such duties and only such duties as are
specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve
either Companion Paying Agent from liability for its negligent failure to act,
bad faith or its own willful misfeasance; provided, however, that the duties and
obligations of each Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. Neither Companion Paying Agent shall be
liable except for the performance of such duties and obligations and no implied
covenants or obligations shall be read into this Agreement against a Companion
Paying Agent. In the absence of bad faith on the part of a Companion Paying
Agent, such Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to such Companion Paying Agent by any Person and
which on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the applicable Master
Servicer pursuant to Article VII of this Agreement, the applicable Companion
Paying Agent shall be deemed simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of a Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register. Each Companion Paying Agent shall
maintain a register (collectively, the "Companion Register") on which it will
record the names and address of, and wire transfer instructions for, the
applicable Companion Holders from time to time, to the extent such information
is provided in writing to it by each Companion Holder. The initial Companion
Holders, along with their respective name, address, wiring instructions and tax
identification number, are listed on Exhibit S hereto. In the event a Companion
Holder transfers a Companion Loan without notice to the relevant Companion
Paying Agent, such Companion Paying Agent shall have no liability for any
misdirected payment in the Companion Loan and shall have no obligation to
recover and redirect such payment.
The applicable Companion Paying Agent shall promptly provide the
name and address of the Companion Holder to any party hereto or any successor
Companion Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. Such Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
Section 3.32 Swap Contract. (a) On or before the Closing Date, the
Trustee, not in its individual capacity but solely in its capacity as Trustee,
on behalf of the Trust, shall enter into the Swap Contract and related
agreements with the Swap Counterparty. The Paying Agent shall perform the duties
and obligations of the Trustee under the Swap Contract.
(b) On the Business Day prior to each P&I Advance Date, based on the
reports provided by each Master Servicer pursuant to Section 3.12(e),
information that the Paying Agent obtains from the Swap Counterparty and the
Swap Contract, and subject to the priorities set forth in Sections 4.01(a),
4.01(b) and 4.01(d) hereof, the Paying Agent shall calculate the Class A-3FL Net
Swap Payment and notify the Swap Counterparty in accordance with the terms of
the Swap Contract.
(c) No later than 4:00 p.m. New York City time on each Distribution
Date, the Paying Agent shall remit the Class A-3FL Net Swap Payment, if any, to
the Swap Counterparty from the Floating Rate Account; provided, that upon the
occurrence and during the continuation of a Class A-3FL Distribution Conversion,
the Paying Agent shall not make such payments to the Swap Counterparty. Promptly
upon receipt of any payment or other receipt in respect of the Swap Contract,
the Paying Agent shall deposit the same into the Floating Rate Account.
(d) The Trustee (or the Paying Agent on the behalf of the Trustee)
shall at all times enforce the Trust's rights under the Swap Contract. In the
event of a Swap Default, the Trustee (or the Paying Agent on its behalf) shall
promptly provide written notice to the Holders of the Class A-3FL Certificates
and shall be required, subject to the Trustee's or the Paying Agent's, as
applicable, determination that costs of enforcement will be recoverable from or
indemnified by the Holders of the Class A-3FL Certificates to take such actions
(following the expiration of any applicable grace period specified in the Swap
Contract), unless otherwise directed in writing by the Holders of 25% (by
Certificate Balance) of the Class A-3FL Certificates to enforce the rights of
the Trust under the Swap Contract as may be permitted by the terms thereof and
use any Swap Termination Fees received from the Swap Counterparty to enter into
a replacement interest rate swap contract on substantially identical terms or on
such other terms reasonably acceptable to the Trustee (or the Paying Agent on
its behalf), with a replacement swap counterparty that would not cause a Rating
Agency Trigger Event, subject, in each case, to written confirmation by the
Rating Agencies that such action will not result in a qualification, downgrade
or withdrawal of the then-current ratings of the Certificates. If the costs
attributable to entering into a replacement interest rate swap contract would
exceed the amount of any Swap Termination Fees, a replacement interest rate swap
contract shall not be entered into and any such proceeds will instead be
distributed, pro rata, to the Holders of the Class A-3FL Certificates on the
immediately succeeding Distribution Date. The Trustee and the Paying Agent shall
be entitled to require reasonable assurances of payment (including, without
limitation, reasonable indemnity therefor) from the Holders of the Class A-3FL
Certificates prior to the incurrence of any costs in connection with the
enforcement of the Swap Contract.
Any Class A-3FL Distribution Conversion shall become permanent
following the determination by the Trustee (or the Paying Agent acting on its
behalf) not to enter into a replacement interest rate swap contract and
distribution of any Swap Termination Fees to the Holders of the Class A-3FL
Certificates. Any such Swap Default (or termination of the Swap Contract) and
the consequent Class A-3FL Distribution Conversion shall not, in and of itself,
constitute an Event of Default under this Agreement.
Upon any change (or notification to the Paying Agent that such
change is imminent) in the payment terms on the Class A-3FL Certificates
including as a result of a Class A-3FL Distribution Conversion, termination of a
Class A-3FL Distribution Conversion, a Swap Default or the cure of a Swap
Default, the Paying Agent shall promptly notify DTC of the change in payment
terms.
(e) In the event that the Swap Contract is terminated and no
replacement interest rate swap agreement is entered into within 30 days of such
termination, the Paying Agent shall provide notice of such termination to the
Class A-3FL Certificateholders which notice shall include: "The Swap Contract
with respect to the Class A-3FL Certificates is terminated as of [date].
Certificateholders and beneficial owners that are Plans are advised that the
Exemption will no longer apply to the Class A-3FL Certificates, effective 60
days after the receipt of this notice. "Exemption", as used in this notice,
shall mean Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14,979 (March
28, 2002), granted by the U.S. Department of Labor to X.X. Xxxxxx Securities
Inc. All other capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing Agreement."
(f) Any costs and expenses related to the Swap Contract (other than
Class A-3FL Net Swap Payments) will only be payable (subsequent to the
distribution of all amounts of principal and interest and reimbursement of
Collateral Support Deficits payable to the Class A-3FL Certificates) from the
Floating Rate Account, which in no circumstances will constitute Additional
Trust Fund Expenses.
(g) The Trustee (or the Paying Agent on the Trustee's behalf) shall
establish a Swap Counterparty Collateral Account. The Trustee (or the Paying
Agent on the Trustee's behalf) shall deposit all collateral received from the
Swap Counterparty under any Credit Support Annex (as defined in the Swap
Contract) of the Swap Contract into the Swap Counterparty Collateral Account.
The only permitted withdrawal from or application of funds on deposit in, or
otherwise to the credit of, the Swap Counterparty Collateral Account shall be
(i) for application to obligations of the Swap Counterparty under a Swap
Contract if such Swap Contract becomes subject to early termination or upon
default by the Swap Counterparty or (ii) to return collateral to the Swap
Counterparty when and as required by a Swap Contract. The Trustee (or the Paying
Agent on the Trustee's behalf) agrees to give the Swap Counterparty prompt
notice if it obtains knowledge that the Swap Counterparty Collateral Account or
any funds on deposit therein or otherwise to the credit of the Swap Counterparty
Collateral Account, shall become subject to any writ, order, judgment, warrant
of attachment, execution or similar process. Funds credited to the Swap
Counterparty Collateral Account shall be applied as contemplated in the Swap
Contract. Subject to the terms of the Swap Contract, proceeds of liquidation of
any Swap Contract collateral (if such Swap Contract becomes subject to early
termination or upon default by the relevant Swap Counterparty) shall be
deposited in the Floating Rate Account for application as applicable.
Section 3.33 Litigation Control. (a) (i) The Special Servicer shall,
(1) direct, manage, prosecute and/or defend any action brought by a Mortgagor
against the Trust and/or the Special Servicer and (2) represent the interests of
the Trust in any litigation relating to the rights and obligations of the
Mortgagor or the Trust, or the enforcement of the obligations of a borrower,
under the Mortgage Loan Documents (for purposes of this Section 3.33(a),
"Trust-Related Litigation") with respect to the Mortgage Loans that are Group A
Mortgage Loans.
(ii) To the extent Master Servicer No. 1 is named in Trust-Related
Litigation, and the Trust or Special Servicer is not named, in order to
effectuate the role of the Special Servicer set forth in this Section
3.33(a), Master Servicer No. 1 shall (1) notify the Special Servicer of
such Trust Related Litigation within ten (10) days of Master Servicer No.
1 receiving service of such Trust Related Litigation; (2) provide monthly
status reports to the Special Servicer, regarding such Trust-Related
Litigation; (3) seek to have the Trust replace Master Servicer No. 1 as
the appropriate party to the lawsuit; and (4) so long as Master Servicer
No. 1 remains a party to the lawsuit, consult with and act at the
direction of the Special Servicer with respect to decisions and
resolutions related to the interests of the Trust in such Trust-Related
Litigation, including but not limited to the selection of counsel,
provided, however, if there are claims against Master Servicer No. 1 and
Master Servicer No. 1 has not determined that separate counsel is required
for such claims, such counsel shall be reasonably acceptable to Master
Servicer No. 1.
(iii) Notwithstanding the right of the Special Servicer to represent
the interests of the Trust in Trust-Related Litigation, and subject to the
rights of the Special Servicer to direct Master Servicer No. 1's actions
in Section 3.33(a)(iv) below, Master Servicer No. 1 shall retain the right
to make determinations relating to claims against Master Servicer No. 1,
including but not limited to the right to engage separate counsel if
necessary. Further, nothing in this section shall require Master Servicer
No. 1 to take or fail to take any action which, in Master Servicer No. 1's
good faith and reasonable judgment, may (1) result in an Adverse REMIC
Event or (2) subject Master Servicer No. 1 to material liability or
materially expand the scope of Master Servicer No. 1's obligations under
this Agreement.
(iv) Notwithstanding Master Servicer No. 1's right to make
determinations relating to claims against Master Servicer No. 1, the
Special Servicer shall (1) have the right at any time to direct Master
Servicer No. 1 to settle any claims brought against the Trust, including
claims asserted against Master Servicer No. 1 (whether or not the Trust or
the Special Servicer is named in any such claims or Trust-Related
Litigation) and (2) otherwise direct the actions of Master Servicer No. 1
relating to claims against Master Servicer No. 1 (whether or not the Trust
or the Special Servicer is named in any such claims or Trust-Related
Litigation), provided in either case that such settlement or other
direction does not require any admission of liability or wrongdoing on the
part of Master Servicer No. 1, the cost of such settlement is paid by the
Trust, and Master Servicer No. 1 is indemnified pursuant to Section 6.03
hereof for all costs and expenses of Master Servicer No. 1 incurred in
defending and settling the Trust Related Litigation.
(v) In the event both Master Servicer No. 1 and the Special Servicer
or Trust are named in litigation, Master Servicer No. 1 and the Special
Servicer shall cooperate with each other to afford Master Servicer No. 1
and the Special Servicer the rights afforded to such party in this Section
3.33.
(vi) This Section 3.33(a) shall not apply in the event the Special
Servicer authorizes Master Servicer No. 1, and Master Servicer No. 1
agrees (both authority and agreement to be in writing), to make certain
decisions or control certain litigation on behalf of the Trust.
(b) (i) The Special Servicer shall, (1) direct, manage, prosecute
and/or defend any action brought by a Mortgagor against the Trust and/or the
Special Servicer and (2) represent the interests of the Trust in any litigation
relating to the rights and obligations of the Mortgagor or Mortgagee, or the
enforcement of the obligations of a Borrower, under the Mortgage Loan Documents
(for purposes of this Section 3.33(b), "Trust-Related Litigation") with respect
to the Mortgage Loans that are Group B Mortgage Loans.
(ii) To the extent Master Servicer No. 2 is named in Trust-Related
Litigation, and the Trust or Special Servicer is not named, in order to
effectuate the role of the Special Servicer as contemplated by Section
3.33(b)(i) above, Master Servicer No. 2 shall (1) notify the Special
Servicer of such Trust-Related Litigation within ten (10) days of Master
Servicer No. 2 receiving service of such Trust-Related Litigation; (2)
provide monthly status reports to the Special Servicer, regarding such
Trust-Related Litigation; (3) seek to have the Trust replace Master
Servicer No. 2 as the appropriate party to the lawsuit; and (4) so long as
Master Servicer No. 2 remains a party to the lawsuit, consult with and act
at the direction of the Special Servicer with respect to decisions and
resolutions related to the interests of the Trust in such Trust-Related
Litigation, including but not limited to the selection of counsel,
provided, however, if there are claims against Master Servicer No. 2 and
Master Servicer No. 2 has not determined that separate counsel is required
for such claims, such counsel shall be reasonably acceptable to Master
Servicer No. 2.
(iii) Notwithstanding the right of the Special Servicer to represent
the interests of the Trust in Trust-Related Litigation, and subject to the
rights of the Special Servicer to direct Master Servicer No. 2's actions
in Section 3.33(b)(iv) below, Master Servicer No. 2 shall retain the right
to make determinations relating to claims against Master Servicer No. 2,
including but not limited to the right to engage separate counsel in
Master Servicer No. 2's reasonable discretion, the cost of which shall be
subject to indemnification pursuant to Section 6.03. Further, nothing in
this section shall require Master Servicer No. 2 to take or fail to take
any action which, in Master Servicer No. 2's good faith and reasonable
judgment, may (1) result in an Adverse REMIC Event or (2) subject Master
Servicer No. 2 to liability or materially expand the scope of Master
Servicer No. 2's obligations under this Agreement.
(iv) Notwithstanding Master Servicer No. 2's right to make
determinations relating to claims against Master Servicer No. 2, the
Special Servicer shall have the right at any time to (1) direct Master
Servicer No. 2 to settle any claims brought against the Trust, including
claims asserted against Master Servicer No. 2 (whether or not the Trust or
the Special Servicer is named in any such claims or Trust-Related
Litigation) and (2) otherwise reasonably direct the actions of Master
Servicer No. 2 relating to claims against Master Servicer No. 2 (whether
or not the Trust or the Special Servicer is named in any such claims or
Trust-Related Litigation), provided in either case that (A) such
settlement or other direction does not require any admission, or is not
likely to result in a finding, of liability or wrongdoing on the part of
Master Servicer No. 2, (B) the cost of such settlement or any resulting
judgment is and shall be paid by the Trust, (C) Master Servicer No. 2 is
and shall be indemnified pursuant to Section 6.03 hereof for all costs and
expenses of Master Servicer No. 2 incurred in defending and settling the
Trust Related Litigation and for any judgment, (D) any such action taken
by Master Servicer No. 2 at the direction of the Special Servicer shall be
deemed (as to Master Servicer No. 2) to be in compliance with the
Servicing Standard and (E) the Special Servicer provides Master Servicer
No. 2 with assurance reasonably satisfactory to Master Servicer No. 2 as
to the items on clauses (A), (B) and (C) .
(v) In the event both Master Servicer No. 2 and the Special Servicer
or Trust are named in litigation, Master Servicer No. 2 and the Special
Servicer shall cooperate with each other to afford Master Servicer No. 2
and the Special Servicer the rights afforded to such party in this Section
3.33.
(vi) This Section 3.33(b) shall not apply in the event the Special
Servicer authorizes Master Servicer No. 2, and Master Servicer No. 2
agrees (both authority and agreement to be in writing), to make certain
decisions or control certain litigation on behalf of the Trust.
(c) Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Paying Agent in its individual
capacity, or in the event that any judgment is rendered against the Paying Agent
in its individual capacity, the Paying Agent, upon prior written notice to the
applicable Master Servicer or the Special Servicer, as applicable, may retain
counsel and appear in any such proceeding on its own behalf in order to protect
and represent its interests; provided that the Master Servicer or Special
Servicer, as applicable, shall retain the right to manage and direct any such
action, suit, litigation or proceeding; (ii) in the event of any action, suit,
litigation or proceeding, other than an action, suit, litigation or proceeding
relating to the enforcement of the obligations of a Mortgagor under the related
Mortgage Loan documents or otherwise relating to a Mortgage Loan or Mortgaged
Property, neither the Master Servicer nor the Special Servicer shall, without
the prior written consent of the Paying Agent, (A) initiate any action, suit,
litigation or proceeding in the name of the Paying Agent, whether in such
capacity or individually, (B) engage counsel to represent the Paying Agent, or
(C) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other similar action with the
intent to cause, and that actually causes, the Paying Agent to be registered to
do business in any state, and (iii) in the event that any court finds that the
Paying Agent is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement or any Mortgage Loan, the
Paying Agent shall have the right to retain counsel and appear in any such
proceedings on its own behalf in order to protect and represent its interest,
whether as Paying Agent or individually; provided that the Master Servicer or
the Special Servicer, as applicable, shall retain the right to manage and direct
any such action, suit, litigation or proceeding.
(d) Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to the applicable Master
Servicer or the Special Servicer, as applicable, may retain counsel and appear
in any such proceeding on its own behalf in order to protect and represent its
interests (but not to otherwise direct, manage or prosecute such litigation or
claim), (ii) in the event of any action, suit, litigation or proceeding, other
than an action, suit, litigation or proceeding relating to the enforcement of
the obligations of a Mortgagor under the related Mortgage Loan documents or
otherwise relating to a Mortgage Loan or Mortgaged Property, neither the
applicable Master Servicer nor the Special Servicer shall, without the prior
written consent of the Trustee, (A) initiate any action, suit, litigation or
proceeding in the name of the Trustee, whether in such capacity or individually,
(B) engage counsel to represent the Trustee, or (C) prepare, execute or deliver
any government filings, forms, permits, registrations or other documents or take
any other similar action with the intent to cause, and that actually causes, the
Trustee to be registered to do business in any state, and (iii) in the event
that any court finds that the Trustee is a necessary party in respect of any
action, suit, litigation or proceeding relating to or arising from this
Agreement or any Mortgage Loan, the Trustee shall have the right to retain
counsel and appear in any such proceeding on its own behalf in order to protect
and represent its interest (but not to otherwise direct, manage or prosecute
such litigation or claim).
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Paying Agent shall be deemed to transfer the Lower-Tier Distribution Amount from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account in
the amounts and priorities set forth in Section 4.01(b) with respect to each
Class of Uncertificated Lower-Tier Interests, and immediately thereafter, shall
make distributions thereof from the Upper-Tier Distribution Account in the
following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-4 Certificates and the Class A-SB
Certificates and the Class A-3FL Regular Interest, pro rata, (based upon
their respective entitlements to interest for such Distribution Date), in
respect of interest, from the Loan Group 1 Available Distribution Amount
and up to an amount equal to the aggregate Interest Distribution Amount in
respect of such Classes of Certificates or Regular Interests for such
Distribution Date, (B) to the Holders of the Class A-1A Certificates, in
respect of interest, from the Loan Group 2 Available Distribution Amount
and up to an amount equal to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date and (C)
to the Holders of the Class X Certificates, in respect of interest, up to
an amount equal to the Interest Distribution Amount payable in respect of
such Class of Certificates for such Distribution Date; provided, however,
that if the Loan Group 1 Available Distribution Amount and/or the Loan
Group 2 Available Distribution Amount is insufficient to pay in full the
Interest Distribution Amount provided above, payable in respect of any
Class A Certificates (other than the Class A-3FL Certificates), Class
A-3FL Regular Interest or Class X Certificates on such Distribution Date,
then the entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the respective Classes of the
Class A Certificates (other than the Class A-3FL Certificates), Class
A-3FL Regular Interest and the Class X Certificates, up to an amount equal
to, and pro rata as among such Classes in accordance with, the Interest
Distribution Amount in respect of each such Class of Certificates for such
Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-4 Certificates, the Class A-SB Certificates, the
Class A-1A Certificates and the Class A-3FL Regular Interest in reduction
of the Certificate Balances thereof, concurrently: (A)(1) first, to the
Holders of the Class A-SB Certificates, in an amount up to the Loan Group
1 Principal Distribution Amount and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount for such Distribution Date remaining
after the payments specified in clause (B) below have been made on such
Distribution Date, until the Certificate Balance of the Class A-SB
Certificates is reduced to the Class A-SB Planned Principal Balance; (2)
second, to the Holders of the Class A-1 Certificates, in an amount up to
the Loan Group 1 Principal Distribution Amount and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount, in each case, to the
extent remaining after payments as specified in clause (A)(1) above and
clause (B) below have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-1 Certificates has been
reduced to zero; (3) third, to the Holders of the Class A-2 Certificates,
in an amount up to the Loan Group 1 Principal Distribution Amount and,
after the outstanding Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal Distribution Amount,
in each case, to the extent remaining after payments as specified in
clauses (A)(1) and (2) above and clause (B) below have been made on such
Distribution Date, until the outstanding Certificate Balance of the Class
A-2 Certificates has been reduced to zero; (4) fourth, (a) prior to
September 15, 2012, (x) to the Holders of the Class A-3B Certificates, in
an amount up to the Loan Group 1 Principal Distribution Amount and, after
the outstanding Certificate Balance of the Class A-1A Certificates has
been reduced to zero, the Loan Group 2 Principal Distribution Amount, in
each case, to the extent remaining after payments as specified in clauses
(A)(1), (A)(2) and (A)(3) above and clause (B) below have been made on
such Distribution Date, until the outstanding Certificate Balance of the
Class A-3B Certificates has been reduced to zero, and then (y) to the
Holders of the Class A-3A Certificates and the Class A-3FL Regular
Interest, pro rata, based on their outstanding Certificate Balances, to
the extent remaining after payments as specified in clauses (A)(1),
(A)(2), (A)(3) and (A)(4)(a)(x) above and clause (B) below have been made
on such Distribution Date, until the outstanding Certificate Balances of
the Class A-3A Certificates and the Class A-3FL Regular Interest have been
reduced to zero, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Certificate Balance of the
Class A-1A Certificates has been reduced to zero, to the Holders of the
Class A-3A Certificates and the Class A-3FL Regular Interest, pro rata,
based on their outstanding Certificate Balances, the Loan Group 2
Principal Distribution Amount, to the extent remaining after payments as
specified in clauses (A)(1), (A)(2), (A)(3) and (A)(4)(a)(x) above and
clause (B) below have been made on such Distribution Date, until the
outstanding Certificate Balances of the Class A-3A Certificates and the
Class A-3FL Regular Interest have been reduced to zero, and (b) on and
after September 15, 2012, (x) to the Holders of the Class A-3A
Certificates and the Class A-3FL Regular Interest, pro rata, based on
their outstanding Certificate Balances in an amount up to the Loan Group 1
Principal Distribution Amount, to the extent remaining after payments as
specified in clauses (A)(1), (A)(2) and (A)(3) above and clause (B) below
have been made on such Distribution Date and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, to the Holders of the Class A-3A Certificates and the Class A-3FL
Regular Interest, the Loan Group 2 Principal Distribution Amount, pro
rata, based on their outstanding Certificate Balances, to the extent
remaining after payments as specified in clauses (A)(1), (A)(2) and (A)(3)
above and clause (B) below have been made on such Distribution Date, until
the outstanding Certificate Balances of each of the Class A-3A
Certificates and the Class A-3FL Regular Interest have been reduced to
zero and then (y) to the Holders of the Class A-3B Certificates, in an
amount up to the Loan Group 1 Principal Distribution Amount and, after the
outstanding Certificate Balance of the Class A-1A Certificates has been
reduced to zero, the Loan Group 2 Principal Distribution Amount, in each
case, to the extent remaining after payments as specified in clauses
(A)(1), (A)(2), (A)(3) and (A)(4)(b)(x) above and clause (B) below have
been made on such Distribution Date, until the outstanding Certificate
Balance of the Class A-3B Certificates has been reduced to zero, (5)
fifth, to the Holders of the Class A-4 Certificates, in an amount up to
the Loan Group 1 Principal Distribution Amount and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount, in each case, to the
extent remaining after payments as specified in clauses (A)(1), (2), (3)
and (4) above and clause (B) below have been made on such Distribution
Date, until the outstanding Certificate Balance of the Class A-4
Certificates has been reduced to zero, (6) sixth, to the Holders of the
Class A-SB Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount, in each case, to the extent remaining after
payments as specified in clauses (A)(1), (2), (3), (4) and (5) above and
clause (B) below have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-SB Certificates has been
reduced to zero and (B) to the Holders of the Class A-1A Certificates, in
an amount up to the Loan Group 2 Principal Distribution Amount and, after
the Certificate Balances of the Class A-4 Certificates and Class A-SB
Certificates have been reduced to zero, the Loan Group 1 Principal
Distribution Amount remaining after payments specified in clauses (A)(1),
(2), (3), (4), (5) and (6) above have been made on such Distribution Date,
until the Certificate Balance of the Class A-1A Certificates has been
reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3A Certificates, Class A-3B Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-1A Certificates and the
Class A-3FL Regular Interest, pro rata (based upon the aggregate
unreimbursed Collateral Support Deficit allocated to each such Class),
until all amounts of Collateral Support Deficit previously allocated to
such Classes, but not previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class A-M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class A-M Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates) and the Class A-3FL
Regular Interest have been reduced to zero, to the Holders of the Class
A-M Certificates in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
(other than the Class A-3FL Certificates) and the Class A-3FL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class A-M Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class A-M Certificates until all
amounts of Collateral Support Deficit previously allocated to the Class
A-M Certificates, but not previously reimbursed, have been reimbursed in
full;
(vii) seventh, to the Holders of Class A-J Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(viii) eighth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates) and the Class A-3FL
Regular Interest and the Class A-M Certificates have been reduced to zero,
to the Holders of the Class A-J Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A Certificates (other than the Class A-3FL
Certificates), the Class A-3FL Regular Interest and the Class A-M
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class A-J Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class A-J Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
A-J Certificates but not previously reimbursed, have been reimbursed in
full;
(x) tenth, to the Holders of the Class B Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates and Class A-J Certificates have
been reduced to zero, to the Holders of the Class B Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates (other than the Class
A-3FL Certificates), Class A-3FL Regular Interest, Class A-M Certificates
and Class A-J Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class B Certificates has been
reduced to zero;
(xii) twelfth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates and Class
B Certificates have been reduced to zero, to the Holders of the Class C
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
(other than the Class A-3FL Certificates), Class A-3FL Regular Interest,
Class A-M Certificates, Class A-J Certificates and Class B Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class C Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class C Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class C Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates and Class C Certificates have been reduced to zero, to the
Holders of the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates (other than the Class A-3FL Certificates), Class
A-3FL Regular Interest, Class A-M Certificates, Class A-J Certificates,
Class B Certificates and Class C Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class D Certificates has
been reduced to zero;
(xviii) eighteenth, to the Holders of the Class D Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class D Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates and Class D Certificates have been
reduced to zero, to the Holders of the Class E Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates (other than the Class
A-3FL Certificates), Class A-3FL Regular Interest, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates and
Class D Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class E Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates and Class E
Certificates have been reduced to zero, to the Holders of the Class F
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
(other than the Class A-3FL Certificates), Class A-3FL Regular Interest,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates and Class E Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class F Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates have been reduced to zero, to the
Holders of the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates (other than the Class A-3FL Certificates), Class
A-3FL Regular Interest, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class G Certificates has been
reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class H Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates have been
reduced to zero, to the Holders of the Class H Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates (other than the Class
A-3FL Certificates), Class A-3FL Regular Interest, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates and Class G
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class H Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class H Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class H Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
(other than the Class A-3FL Certificates), Class A-3FL Regular Interest,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
J Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates have been reduced to zero, to the
Holders of the Class K Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates (other than the Class A-3FL Certificates), Class
A-3FL Regular Interest, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class K Certificates has been
reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class L Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates have been
reduced to zero, to the Holders of the Class L Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates (other than the Class
A-3FL Certificates), Class A-3FL Regular Interest, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates and Class K
Certificates a on such Distribution Date), until the outstanding
Certificate Balance of the Class L Certificates has been reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates and Class L
Certificates have been reduced to zero, to the Holders of the Class M
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
(other than the Class A-3FL Certificates), Class A-3FL Regular Interest,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and Class L Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
M Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class N Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates have been reduced to zero, to the
Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates (other than the Class A-3FL Certificates), Class
A-3FL Regular Interest, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class N Certificates has been
reduced to zero;
(xlv) forty-fifth, to the Holders of the Class N Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class N Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class P Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates and Class N Certificates have been
reduced to zero, to the Holders of the Class P Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates (other than the Class
A-3FL Certificates), Class A-3FL Regular Interest, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates and Class N
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class P Certificates has been reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class P Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class P Certificates, but not previously reimbursed, have been
reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class Q Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(l) fiftieth, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class P
Certificates have been reduced to zero, to the Holders of the Class Q
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
(other than the Class A-3FL Certificates), Class A-3FL Regular Interest,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class P Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
Q Certificates has been reduced to zero;
(li) fifty-first, to the Holders of the Class Q Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class Q Certificates, but not previously reimbursed, have been reimbursed
in full;
(lii) fifty-second, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(liii) fifty-third, after the Certificate Balances of the Class A
Certificates (other than the Class A-3FL Certificates), Class A-3FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class P
Certificates and Class Q Certificates have been reduced to zero, to the
Holders of the Class NR Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates (other than the Class A-3FL Certificates), Class
A-3FL Regular Interest, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class P
Certificates and Class Q Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class NR Certificates has been
reduced to zero;
(liv) fifty-fourth, to the Holders of the Class NR Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class NR Certificates, but not previously reimbursed, have been
reimbursed in full; and
(lv) fifty-fifth, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
any Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, such Master Servicer shall promptly notify the
Paying Agent and the Paying Agent will use commercially reasonable efforts to
cause DTC to make the revised distribution on a timely basis on such
Distribution Date. None of the Master Servicers, the Special Servicer or the
Paying Agent shall be liable or held responsible for any resulting delay in the
making of such distribution to Certificateholders solely on the basis of the
actions described in the preceding sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a), 4.01(c),
4.01(e) and 4.01(h). On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of interest in an
amount equal to the Interest Distribution Amount in respect of its Related
Certificates and its related Component of the Class X Certificates, in each case
to the extent actually distributable thereon as provided in Section 4.01(a). For
this purpose, interest distributed on the Class X Certificates shall be treated
as having been paid to the Components pro rata, based on the interest accrued
with respect thereto. Such amounts distributed to the Uncertificated Lower-Tier
Interests in respect of principal and interest with respect to any Distribution
Date are referred to herein collectively as the "Lower-Tier Distribution
Amount," and shall be made by the Paying Agent by deeming such Lower-Tier
Distribution Amount to be deposited in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto, as adjusted for the allocation of Collateral Support
Deficits, as provided in Sections 4.04(b) and 4.04(c) and of Certificate
Deferred Interest as provided in Section 4.06. The initial principal balance of
each Uncertificated Lower-Tier Interest equals the respective Original
Lower-Tier Principal Amount. The pass through rate with respect to each
Uncertificated Lower-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and distribution of Yield Maintenance Charges pursuant to Section 4.01(d)(iii)
shall be distributed to the Holders of the Class LR Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-1A, Class A-2, Class A-3A, Class A-3B, Class A-4 and Class A-SB Certificates
and the Class A-3FL Regular Interest without regard to Loan Group, based on
their respective Certificate Balances immediately prior to such Distribution
Date, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero, and any amounts
representing reimbursements of Collateral Support Deficits previously allocated
to such Classes, if available, will be distributed pro rata based on their
respective Certificate Balances, without regard to Loan Group.
(d) (i) On each Distribution Date, Yield Maintenance Charges
collected during the related Due Period will be distributed by the Paying Agent
to the following Classes: to the Class A-1 Certificates, Class A-2 Certificates,
Class A-3A Certificates, Class A-3FL Regular Interest, Class A-3B Certificates,
Class A-4 Certificates, Class A-SB Certificates, Class A-1A Certificates, Class
A-M Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H and Class J Certificates with respect to the
related Loan Group (if applicable, in the case of the Class A-1, Class A-2,
Class A-3A, Class X-0X, Xxxxx X-0, Class A-SB, Class A-1A Certificates and the
Class A-3FL Regular Interest) on each Distribution Date, in an amount equal to
the product of (a) a fraction whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator is the
total amount distributed as principal to the Class A-1 Certificates, Class A-2
Certificates, Class A-3A Certificates, Class A-3FL Regular Interest, Class A-3B
Certificates, Class A-4 Certificates, Class A-SB Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class P Certificates, Class Q Certificates and Class NR
Certificates on such Distribution Date, (b) the Base Interest Fraction for the
related principal payment on such Class of Certificates or the Class A-3FL
Regular Interest, and (c) the aggregate amount of Yield Maintenance Charges
collected on such principal prepayments during the related Due Period. If more
than one such Class of Certificates is entitled to distributions of principal
with respect to the related Loan Group on any particular Distribution Date on
which Yield Maintenance Charges are distributable, the aggregate amount of such
Yield Maintenance Charges will be allocated among all such Classes up to, and on
a pro rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge collected
during the related Due Period remaining after such distributions will be
distributed to the holders of the Class X Certificates. Notwithstanding the
foregoing, any prepayment penalties collected that are based on a percentage of
the amount being prepaid will be distributed to the Class X Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class K, Class L, Class M, Class N, Class P, Class Q, Class NR,
Class S or Residual Certificates. After the Certificate Balances of the
Class A-1 Certificates, Class A-2 Certificates, Class A-3A Certificates,
Class A-3FL Regular Interest, Class A-3B Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H and Class J Certificates have
been reduced to zero, all Yield Maintenance Charges with respect to the
Mortgage Loans shall be distributed to the holders of the Class X
Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates and the Class A-3FL
Regular Interest on each Distribution Date pursuant to Section 4.01(d)(i)
shall first be deemed to be distributed from the Lower-Tier REMIC to the
Upper-Tier REMIC in respect of the Uncertificated Lower-Tier Interests,
pro rata based upon the amount of principal distributed in respect of each
such Class of Uncertificated Lower-Tier Interests for such Distribution
Date pursuant to Section 4.01(b) above.
(iv) Any distributions of Yield Maintenance Charges in respect of
the Class A-3FL Regular Interest shall be distributed to the Holders of
the Class A-3FL Certificates or to the Swap Counterparty as specified in
Section 4.01(k).
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates (other than the Class A-3FL
Certificates) and the Class A-3FL Regular Interest (in order of distribution
priority) (first deeming such amounts to be distributed with respect to the
Related Uncertificated Lower-Tier Interests) up to an amount equal to all
Collateral Support Deficits, if any, previously deemed allocated to them and
unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account will not
reduce the Certificate Balances of the Classes of Certificates or Class A-3FL
Regular Interest receiving such distributions. Any amounts remaining in the
Gain-on-Sale Reserve Account after such distributions shall be applied to offset
future Collateral Support Deficits and related Collateral Support Deficits and
upon termination of the Trust Fund, any amounts remaining in the Gain-on-Sale
Reserve Account shall be distributed to the Class LR Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to such Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Master Servicers, the
Special Servicer or the Underwriters shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates (other than the Class A-3FL
Certificates) or the Class A-3FL Regular Interest shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(e), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 12.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class S Certificates from the Excess Interest Distribution
Account.
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, each Companion Paying Agent shall make
withdrawals and payments from its Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05, to
the extent any such amounts relate solely to the Loan Pair related to such
Companion Loan, and such amounts are to be paid by the related Companion
Holder pursuant to the related Intercreditor Agreement;
(ii) to pay to the applicable Master Servicer any amounts deposited
by such Master Servicer in the Companion Distribution Account not required
to be deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Accounts required
hereunder shall be made by the applicable Companion Paying Agent to the
Companion Holder by wire transfer in immediately available funds to the account
of such Companion Holder or an agent therefor appearing on the Companion
Register on the related Record Date (or, if no such account so appears or
information relating thereto is not provided at least five Business Days prior
to the related Record Date, by check sent by first-class mail to the address of
such Companion Holder or its agent appearing on the Companion Register). Any
such account shall be located at a commercial bank in the United States.
(k) (i) On each Distribution Date, for so long as the Certificate
Balance of the Class A-3FL Regular Interest (and correspondingly, the Class
A-3FL Certificates) has not been reduced to zero, to the extent of the Class
A-3FL Available Funds for such Distribution Date, after remitting any Class
A-3FL Net Swap Payment to the Swap Counterparty pursuant to Section 3.32(c), the
Paying Agent shall make distributions from the Floating Rate Account in the
following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(A) first, to the Holders of the Class A-3FL Certificates, in
respect of interest, up to an amount equal to the sum of (i) the
Class A-3FL Interest Distribution Amount for such Distribution Date
and (ii) an amount equal to any Accrued Interest From Recoveries
relating to the Class A-3FL Regular Interest;
(B) second, to the Holders of the Class A-3FL Certificates, in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-3FL Principal Distribution Amount, until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-3FL Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class A-3FL Certificates (as a result of the allocation of
Collateral Support Deficit to the Class A-3FL Regular Interest) but
not previously reimbursed, has been reimbursed in full;
(D) fourth, to pay (1) any costs and expenses related to the
Swap Contract and (2) any termination payments to the Swap
Counterparty, in that order and solely to the extent provided
herein, including Section 4.01(k)(iii); and
(E) fifth, any remaining amount to the Holders of the Class
A-3FL Certificates.
(ii) So long as a Class A-3FL Distribution Conversion is not in
effect, any Yield Maintenance Charges paid on the Class A-3FL Regular
Interest shall be payable to the Swap Counterparty pursuant to the terms
of the Swap Contract on a net basis as part of the Class A-3FL Net Swap
Payment as specified in Section 3.32. On each Distribution Date for which
a Class A-3FL Distribution Conversion is in effect, any Yield Maintenance
Charges paid on the Class A-3FL Regular Interest shall be distributed to
the Holders of the Class A-3FL Certificates.
(iii) Any termination payments due to the Swap Counterparty under
the Swap Contract shall be payable solely from amounts, if any, remaining
in the Floating Rate Account after all other amounts have been paid under
the Class A-3FL Certificates (including all principal and interest amounts
outstanding and reimbursement of any Collateral Support Deficit).
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s; Grant of Power of Attorney. (a) On each Distribution
Date, the Paying Agent shall make available to the general public a statement
(substantially in the form set forth as Exhibit G hereto and based on the
information supplied to the Paying Agent in the related CMSA Investor Reporting
Package (IRP) in accordance with CMSA guidelines) as to the distributions made
on such Distribution Date (each, a "Statement to Certificateholders") which
shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest, with respect to the Class A-3FL Certificates,
notification that the amount of interest distributed thereon is the equal
to the Interest Distribution Amount with respect to the Class A-3FL
Regular Interest, which is being paid as a result of a Class A-3FL
Distribution Conversion;
(iii) (A) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of such Advances, in each
case, on a loan-by-loan basis as of the P&I Advance Date and (B) the
aggregate amount of all Nonrecoverable Advances on a loan-by-loan basis as
of the P&I Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Paying Agent and servicing compensation paid to the Master Servicers
and the Special Servicer with respect to the Due Period for such
Distribution Date together with detailed calculations of servicing
compensation paid to the Master Servicers and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to
each Master Servicer and the Trustee since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date),
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to each Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxiii) LIBOR as calculated for the related Distribution Date and
the next succeeding Distribution Date;
(xxxiv) the amounts received and paid in respect of the Swap
Contract;
(xxxv) identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately
preceding calendar month with respect to the Swap Contract;
(xxxvi) the amount of any (A) payment by the Swap Counterparty as a
termination payment, (B) payments in connection with the acquisition of a
replacement interest rate swap contract, and (C) collateral posted in
connection with any Rating Agency Trigger Event;
(xxxvii) the amount of, and identification of, any payments on the
Class A-3FL Certificates in addition to the amount of principal and
interest due thereon (including without limitation, any termination
payment received in connection with the Swap Contract);
(xxxviii) a loan-by-loan listing of any material modification,
extension or waiver of a Mortgage Loan; and
(xxxix) a loan-by-loan listing of any material breach of the
representations and warranties given with respect to a Mortgage Loan by
the applicable Mortgage Loan Seller.
In the case of information furnished pursuant to clauses (i), (ii),
(x), (xi), (xxxiv) and (xxxvii) above, the amounts shall be expressed as a
dollar amount in the aggregate for all Certificates of each applicable Class and
per Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
the general public via its website initially located at "xxx.xxxxxxxx.xxx" (i)
the related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement. In
addition, if the Depositor so directs the Paying Agent, and on terms acceptable
to the Paying Agent, the Paying Agent shall make certain other information and
reports related to the Mortgage Loans available through its internet website.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" and the CMSA Operating Statement Analysis Report and CMSA NOI Adjusted
Worksheets and seven CMSA data files, the Realized Loss Report and the CMSA
Advance Recovery Report to the extent delivered by each Master Servicer pursuant
to this Agreement.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's Internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
Internet website can be directed to the Paying Agent's CMBS customer service
desk at (000) 000-0000.
Each of the Master Servicer and the Special Servicer may, at its
sole cost and expense, make available by electronic media, bulletin board
service or Internet website (in addition to making information available as
provided herein) any reports or other information such Master Servicer or the
Special Servicer, as applicable, is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder (which may be a licensed or registered investment
advisor) to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law. In connection with
providing access to such Master Servicer's or the Special Servicer's Internet
website, such Master Servicer or the Special Servicer, as applicable, shall take
reasonable measures to ensure that only such parties listed above may access
such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. Each Master Servicer
or the Special Servicer, as applicable, shall not be liable for dissemination of
this information in accordance with this Agreement, provided that such
information otherwise meets the requirements set forth herein with respect to
the form and substance of such information or reports. Each Master Servicer or
the Special Servicer, as applicable, shall be entitled to attach to any report
provided pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, each Master Servicer or the
Special Servicer may, at its sole cost and expense, make available by electronic
media, bulletin board service or Internet website any reports or other
information such Master Servicer or the Special Servicer, as applicable, is
required or permitted to provide to any Mortgagor with respect to such
Mortgagor's Mortgage Loan to the extent such action does not conflict with the
terms of this Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the applicable Master Servicer) provide the
applicable Master Servicer with such information in its possession regarding the
Specially Serviced Mortgage Loans and REO Properties as may be necessary for
such Master Servicer to prepare each report and any supplemental information to
be provided by such Master Servicer to the Paying Agent. Neither the Paying
Agent nor the Depositor shall have any obligation to recompute, verify or
recalculate the information provided thereto by such Master Servicer. Unless the
Paying Agent has actual knowledge that any report or file received from the
applicable Master Servicer contains erroneous information, the Paying Agent is
authorized to rely thereon in calculating and making distributions to
Certificateholders in accordance with Section 4.01, preparing the statements to
Certificateholders required by Section 4.02(a) and allocating Collateral Support
Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of any Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent such Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of such Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. Each Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the applicable Master Servicer shall either (i)
remit to the Paying Agent for deposit into the Lower-Tier Distribution Account
from its own funds an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date, (ii) apply amounts
held in its Certificate Account, for future distribution to Certificateholders
in subsequent months in discharge of any such obligation to make P&I Advances or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made. Any amounts held in the
applicable Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the applicable Master Servicer's
records and replaced by such Master Servicer by deposit in the Certificate
Account on or before the next succeeding P&I Advance Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and/or interest in respect of which such P&I Advances were made). Each
Master Servicer shall notify the Paying Agent of (i) the aggregate amount of P&I
Advances for a Distribution Date and (ii) the amount of any Nonrecoverable P&I
Advances for such Distribution Date, on or before 2 Business Days prior to such
Distribution Date. If any Master Servicer fails to make a required P&I Advance
by 4:00 p.m., New York City time, on any P&I Advance Date, the Trustee shall
make such P&I Advance pursuant to Section 7.05 by noon, New York City time, on
the related Distribution Date, in each case unless such Master Servicer shall
have cured such failure (and provided written notice of such cure to the Trustee
and the Paying Agent) by 11:00 a.m. on such Distribution Date. In the event that
any Master Servicer fails to make a required P&I Advance hereunder, the Paying
Agent shall notify the Trustee of such circumstances by 4:30 p.m. (New York City
time) on the related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by any Master Servicer with respect to any Distribution Date
and each Mortgage Loan that it is responsible for servicing hereunder shall be
equal to: (i) the Monthly Payments (net of related Servicing Fees) other than
Balloon Payments, that were due during the related Due Period and delinquent as
of the close of business on the Business Day preceding the related P&I Advance
Date and (ii) with respect to each Mortgage Loan as to which the related Balloon
Payment was due during or prior to the related Due Period and was delinquent as
of the end of the related Due Period (including any REO Loan as to which the
Balloon Payment would have been past due), an amount equal to the Assumed
Scheduled Payment therefor. Subject to subsection (c) below, the obligation of
each Master Servicer to make such P&I Advances is mandatory, and with respect to
any Mortgage Loan or REO Loan, shall continue until the Distribution Date on
which the proceeds, if any, received in connection with a Liquidation Event or
the disposition of the REO Property, as the case may be, with respect thereto
are to be distributed. No P&I Advances shall be made with respect to a Companion
Loan.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance.
(d) In connection with the recovery of any P&I Advance out of the
applicable Certificate Account, pursuant to Section 3.05(a), the applicable
Master Servicer shall be entitled to pay the Trustee and itself or the other
Master Servicer (if amounts in such other Master Servicer's Certificate Account
are not sufficient for such reimbursement) (in that order of priority) as the
case may be out of any amounts then on deposit in such Certificate Account,
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of such P&I Advance from the date made to but not including the date of
reimbursement; provided, however, that no interest will accrue on any P&I
Advance (i) made with respect to a Mortgage Loan until after the related Due
Date has passed and any applicable grace period has expired or (ii) if the
related Monthly Payment is received after the Determination Date but on or prior
to the related P&I Advance Date. Each Master Servicer shall reimburse itself or
the other Master Servicer (if amounts in such other Master Servicer's
Certificate Account are not sufficient for such reimbursement) and the Trustee,
as the case may be, for any outstanding P&I Advance, subject to Section 3.19 of
this Agreement, as soon as practicably possible after funds available for such
purpose are deposited in its Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Master Servicers
nor the Trustee shall make an advance for Excess Interest, Yield Maintenance
Charges, Default Interest or Penalty Charges and (ii) if an Appraisal Reduction
has been made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicers or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
(g) None of the Master Servicers, the Paying Agent or the Trustee
shall advance any amount due to be paid by the Swap Counterparty for
distribution to the Class A-3FL Certificates.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Paying Agent shall calculate the amount,
if any, by which (i) the aggregate Stated Principal Balance (for purposes of
this calculation only, not giving effect to any reductions of the Stated
Principal Balance for payments of principal collected on the Mortgage Loans that
were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to
Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are
not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans
and any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates (other than the Class A-3FL Certificates) and the Class
A-3FL Regular Interest after giving effect to distributions of principal on such
Distribution Date and the allocation of Certificate Deferred Interest pursuant
to Section 4.06 (any such deficit, the "Collateral Support Deficit"). Any
allocation of Collateral Support Deficit to a Class of Regular Certificates
(other than the Class A-3FL Certificates) and the Class A-3FL Regular Interest
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to the Class A-3FL Regular
Interest shall result in a corresponding reduction of the Certificate Balance of
the Class A-3FL Certificates. Any Collateral Support Deficit allocated to a
Class of Regular Certificates (or, in the case of the Class A-3FL Certificates,
an amount corresponding to any Collateral Support Deficit allocated to the Class
A-3FL Regular Interest, as applicable) shall be allocated among the respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. The allocation of Collateral Support Deficit shall constitute an
allocation of losses and other shortfalls experienced by the Trust Fund.
Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates
(or, in the case of the Class A-3FL Certificates, an amount corresponding to any
Collateral Support Deficit allocated to the Class A-3FL Regular Interest) in
respect of which any such reimbursement is made. To the extent any
Nonrecoverable Advances (plus interest thereon) that were reimbursed from
principal collections on the Mortgage Loans and previously resulted in a
reduction of the Principal Distribution Amount, Loan Group 1 Principal
Distribution Amount or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
or Class A-3FL Regular Interest that previously were allocated Collateral
Support Deficit, in sequential order, in each case up to the amount of the
unreimbursed Collateral Support Deficit allocated to such Class of Certificates
or Class A-3FL Regular Interest. If the Certificate Balance of any Class of
Certificates or Class A-3FL Regular Interest is so increased, the amount of
unreimbursed Collateral Support Deficit of such Class of Certificates or Class
A-3FL Regular Interest shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates (other than the Class A-3FL Certificates) and the Class
A-3FL Regular Interest will be reduced without distribution, as a write-off to
the extent of any Collateral Support Deficit, if any, allocable to such
Certificates or Class A-3FL Regular Interest, as applicable, with respect to
such Distribution Date. Any such write-off shall be allocated first to the Class
NR Certificates; second to the Class Q Certificates; third to the Class P
Certificates; fourth to the Class N Certificates; fifth to the Class M
Certificates; sixth to the Class L Certificates; seventh to the Class K
Certificates; eighth to the Class J Certificates; ninth to the Class H
Certificates; tenth to the Class G Certificates; eleventh to the Class F
Certificates; twelfth to the Class E Certificates; thirteenth to the Class D
Certificates; fourteenth to the Class C Certificates; fifteenth to the Class B
Certificates; sixteenth to the Class A-J Certificates; seventeenth to the Class
A-M Certificates and eighteenth to the Class A-1 Certificates, Class A-2
Certificates, Class A-3A Certificates, Class A-3B Certificates, Class A-4
Certificates, Class A-SB Certificates and the Class A-1A Certificates and Class
A-3FL Regular Interest, pro rata (based upon their respective Certificate
Balances), until the remaining Certificate Balances of such Classes of
Certificates or the Class A-3FL Regular Interest, as applicable, have been
reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates (other than the Class A-3FL, Class
X, Class R, Class LR and Class S Certificates) or Class A-3FL Regular Interest
pursuant to Section 4.04(b) with respect to such Distribution Date shall reduce
the Lower-Tier Principal Amount of the Related Uncertificated Lower-Tier
Interest with respect thereto as a write-off.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Paying Agent on each Distribution Date, only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, to the Certificate Balance of the Class NR, Class Q, Class P,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C and Class B Certificates, the Class A-J Certificates and then
the Class A-M Certificates in that order, up to the amount of their respective
Certificate Balances. On any Distribution Date, an Appraisal Reduction that
otherwise would be allocated to a Class of Certificates will be allocated to the
next most subordinate Class to the extent that the Certificate Balance on such
Distribution Date for such Class of Certificates (prior to taking the Appraisal
Reduction into account) is less than the Appraisal Reduction for such
Distribution Date.
With respect to any AB Mortgage Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of such AB
Mortgage Loan and the related Companion Loan. Any resulting Appraisal Reductions
will be allocated to the related Companion Loan up to the principal amount of
such Companion Loan prior to being allocated to the AB Mortgage Loan.
With respect to the One & Two Prudential Plaza Whole Loan, Appraisal
Reductions will be calculated based on the aggregate outstanding principal
balance of the One & Two Prudential Plaza Mortgage Loan and the One & Two
Prudential Plaza Companion Note. Any resulting Appraisal Reductions will be
allocated, pro rata, to the One & Two Prudential Plaza Mortgage Loan and the One
& Two Prudential Plaza Companion Note, based on their Stated Principal Balances.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Certificates (other
than the Class A-3FL, Class X, Class S, Class R and Class LR Certificates) and
the Class A-3FL Regular Interest shall be reduced by an amount equal to the
amount of Mortgage Deferred Interest for all Mortgage Loans for the Due Dates
occurring in the related Due Period allocated to such Class of Certificates or
Class A-3FL Regular Interest, as applicable, such Mortgage Deferred Interest to
be allocated first, to the Class NR Certificates; second, to the Class Q
Certificates; third, to the Class P Certificates; fourth, to the Class N
Certificates; fifth, to the Class M Certificates; sixth, to the Class L
Certificates; seventh, to the Class K Certificates; eighth, to the Class J
Certificates; ninth, to the Class H Certificates; tenth, to the Class G
Certificates; eleventh, to the Class F Certificates; twelfth, to the Class E
Certificates; thirteenth, to the Class D Certificates; fourteenth, to the Class
C Certificates; fifteenth, to the Class B Certificates; sixteenth, to the Class
A-J Certificates; seventeenth, to the Class A-M Certificates and then pro rata
(based upon Accrued Certificate Interest) to the Class A-1, Class A-1A, Class
A-2, Class A-3A, Class A-3B, Class A-4 and Class A-SB Certificates and the Class
A-3FL Regular Interest, in each case up to the respective Accrued Certificate
Interest for each such Class of Certificates for such Distribution Date.
Certificate Deferred Interest allocated to the Class A-3FL Regular Interest
will, by virtue of such allocation, be allocated to the Class A-3FL
Certificates.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-2 Certificates, Class A-3FL Regular Interest (and
correspondingly the Class A-3FL Certificates), Class A-3A Certificates, Class
A-3B Certificates, Class A-4 Certificates, Class A-SB Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class P Certificates, Class Q Certificates and Class NR
Certificates shall be increased by the amount of the Certificate Deferred
Interest allocated to such Class of Certificates or the Class A-3FL Regular
Interest, as applicable, on such Distribution Date pursuant to Section 4.06(a)
above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates or the Class A-3FL Regular Interest, as
applicable, shall be allocated in reduction of the amount of interest
distributable to the Related Uncertificated Lower-Tier Interest with respect
thereto. On each Distribution Date, to the extent provided in Section 4.06(b)
with respect to the Related Certificates, Certificate Deferred Interest will be
added to the Lower-Tier Principal Amount of the Uncertificated Lower-Tier
Interests in the same manner as the interest thereon was reduced pursuant to the
preceding sentence.
Section 4.07 Grantor Trust Reporting. The parties intend that the
portion of the Trust Fund constituting the Grantor Trust, which consists of (i)
the Excess Interest allocable to the Mortgage Loans, proceeds thereof held in
the Certificate Account pertaining to the Excess Interest allocable to the
Mortgage Loans and the Excess Interest Distribution Account and (ii) the Class
A-3FL Regular Interest, the Swap Contract, the Floating Rate Account and
proceeds thereof, shall constitute, and that the affairs of the Trust Fund
(exclusive of the Lower-Tier REMIC and the Upper-Tier REMIC) shall be conducted
so as to qualify such portion as, a "grantor trust" under subpart E, Part I of
subchapter J of the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Paying
Agent shall (A) file, or cause to be filed, Internal Revenue Service Form 1041
or such other form as may be applicable with the Internal Revenue Service, (B)
furnish, or cause to be furnished, to the Class S Certificateholders, their
allocable share of income with respect to Excess Interest accrued or received,
as applicable, and (C) furnish, or cause to be furnished, to the Class A-3FL
Certificateholders, their allocable share of income and expense with respect to
the Class A-3FL Regular Interest and the Swap Contract, each in the time or
times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-29. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class S, Class R and
Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized initial Notional Amount of not less than $1,000,000 and in integral
multiples of $1.00 in excess thereof. The Class A-3FL will be issuable only in
minimum Denominations of authorized initial Certificate Balance of not less than
$100,000 and in integral multiples of $1.00 in excess thereof. The Offered
Certificates (other than the Class X Certificates and the Class A-3FL
Certificates) will be issuable only in minimum Denominations of authorized
initial Certificate Balance of not less than $10,000, and in integral multiples
of $1.00 in excess thereof. The Non-Registered Certificates (other than the
Class S Certificates and the Residual Certificates) will be issuable in minimum
Denominations of authorized initial Certificate Balance of not less than
$250,000, and in integral multiples of $1.00 in excess thereof. If the Original
Certificate Balance or initial Notional Amount, as applicable, of any Class does
not equal an integral multiple of $1.00, then a single additional Certificate of
such Class may be issued in a minimum denomination of authorized initial
Certificate Balance or initial Notional Amount, as applicable, that includes the
excess of (i) the Original Certificate Balance or initial Notional Amount, as
applicable, of such Class over (ii) the largest integral multiple of $1.00 that
does not exceed such amount. The Class S, Class R and Class LR Certificates will
be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (a) set forth on the face thereof or, (b) set
forth on a schedule attached thereto or (c) in the case of any beneficial
interest in a Book-Entry Certificate, the interest of the related Certificate
Owner in the applicable Class of Certificates as reflected on the books and
records of the Depository or related Participants, as applicable, (ii) expressed
in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx, is hereby initially appointed Authenticating Agent with power to act,
on the Trustee's behalf, in the authentication and delivery of the Certificates
in connection with transfers and exchanges as herein provided. If LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx, is removed as Paying Agent, then LaSalle Bank National Association
shall be terminated as Authenticating Agent. If the Authenticating Agent is
terminated, the Trustee shall appoint a successor Authenticating Agent, which
may be the Trustee or an Affiliate thereof.
(b) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. LaSalle Bank
National Association is hereby initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Depositor, the Trustee, the Paying Agent, the
Special Servicer and the Master Servicers, any other bank or trust company to
act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe, provided that the predecessor Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment. If LaSalle Bank National Association
resigns or is removed as Paying Agent, the Trustee shall immediately succeed to
the duties of the Certificate Registrar. The Depositor, the Trustee, the Master
Servicers and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Master Servicers, the Paying Agent, the Trustee, the Special
Servicer and any agent of any of them shall not be affected by any notice or
knowledge to the contrary. A Definitive Certificate is transferable or
exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at its office maintained at LaSalle Bank National Association, as
Certificate Registrar, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services, X.X. Xxxxxx 2006-LDP7
(the "Registrar Office") together with an assignment and transfer (executed by
the Holder or his duly authorized attorney). Subject to the requirements of
Sections 5.02(b), (c) and (d), the Certificate Registrar shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in Denominations of a
like aggregate Denomination as the Definitive Certificate being surrendered.
Such Certificates shall be delivered by the Certificate Registrar in accordance
with Section 5.02(e). Each Certificate surrendered for registration of transfer
shall be canceled, and the Certificate Registrar shall hold such canceled
Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to LNR Securities
Holdings, LLC) is to be made in reliance upon an exemption from the Securities
Act, and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate (other than a Class
S Certificate) wishes at any time to transfer such Certificate to a Person
who wishes to take delivery thereof in the form of a beneficial interest
in the related Regulation S Book-Entry Certificate or the related Rule
144A Book-Entry Certificate, such transfer may be effected only in
accordance with the Applicable Procedures, and this Section 5.02(b)(vi).
Upon receipt by the Certificate Registrar at the Registrar Office of (1)
the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(d), (2) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in such Regulation S Book-Entry Certificate or such Rule 144A Book-Entry
Certificate, as the case may be, in an amount equal to the Denomination of
the Definitive Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Depository Participant (and, in the case of
any transfer pursuant to Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with such beneficial interest,
and (4) (x) if delivery is to be taken in the form of a beneficial
interest in the Regulation S Book-Entry Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, if delivery is to be taken
in the form of a beneficial interest in the Rule 144A Book-Entry
Certificate, the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered
in the name of the Holder, and the Certificate Registrar, as custodian of
the Book-Entry Certificates, shall increase the Denomination of the
Regulation S Book-Entry Certificate or the Rule 144A Book-Entry
Certificate, as the case may be, by the Denomination of the Definitive
Certificate to be so transferred, and credit or cause to be credited to
the account of the Person specified in such instructions (who, in the case
of any increase in the Regulation S Book-Entry Certificate during the
Restricted Period, shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v), provided, however, that any such transfer of a Class S
Certificate shall be made only to a transferee that is a Qualified
Institutional Buyer.
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL
CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (d) (OTHER THAN WITH RESPECT
TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A CLASS S
CERTIFICATE OR A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates and the Class
S Certificates, no sale, transfer, pledge or other disposition of any such
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or a plan
subject to Section 4975 of the Code, or a governmental plan (as defined in
Section 3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA)
for which no election has been made under Section 410(d) of the Code subject to
any federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than, except in the case of the Class S Certificates, an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate, other than a Class S Certificate, which may be held only by
a person not described in (a) or (b) above, is presented for registration in the
name of a purchaser or transferee that is any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicers, the Special Servicer, the
Underwriters, the Initial Purchasers or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any ERISA Restricted Certificate or Class S Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or in the case of an ERISA Restricted Certificate,
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Master Servicers, the Special Servicer, the Trustee,
the Paying Agent, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate or Class S Certificate shall be deemed to represent that it is not a
Person specified in clauses (a) or (b) above. Any transfer, sale, pledge or
other disposition of any ERISA Restricted Certificates or Class S Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding,
each Master Servicer or the Special Servicer, as applicable, will make
available, or cause to be made available, upon request, to any Holder and any
Person to whom any such Certificate of any such Class of Certificates may be
offered or sold, transferred, pledged or otherwise disposed of by such Holder,
information with respect to such Master Servicer, the Special Servicer or the
Mortgage Loans necessary to the provision of an Opinion of Counsel described in
this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicers, the Trustee and the Certificate Registrar of any change
or impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicers, the Authenticating
Agent and the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement;
provided, however, that the Certificate Registrar shall be under such
liability for a registration of Transfer of a Residual Certificate if it
has actual knowledge that the proposed Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person in violation of Section 5.02(c)(i)(C) above or is not a Permitted
Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class X-0,
Xxxxx X-0, Class A-3A, Class A-3FL, Class X-0X, Xxxxx X-0, Class A-1A, Class
A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H or
Class X Certificates) or a beneficial interest in a Book-Entry Certificate
representing a Non-Registered Certificate is being held by or for the benefit of
a Person who is not an Eligible Investor, or that such holding is unlawful under
the laws of a relevant jurisdiction, then the Certificate Registrar shall have
the right to void such transfer, if permitted under applicable law, or to
require the investor to sell such Definitive Certificate or beneficial interest
in such Book-Entry Certificate to an Eligible Investor within 14 days after
notice of such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(f) The Certificate Registrar shall provide an updated copy of the
Certificate Register to the Trustee, the Paying Agent, the Master Servicers, the
Special Servicer and the Depositor upon written request.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Paying Agent, the Master Servicers, the Special
Servicer, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicers, the Trustee, the
Paying Agent, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer, the
Master Servicers or the Paying Agent, on the Trustee's behalf, has been directed
to institute any judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of all or any portion of the Certificates
evidenced by Book-Entry Certificates, the Trustee may in its sole discretion
determine that such Certificates shall no longer be represented by such
Book-Entry Certificates. In such event, the Certificate Registrar will execute,
the Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate (other than a Definitive
Certificate that is a Class S Certificate) wishes at any time to transfer such
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Book-Entry Certificate, such transfer may be effected
only in accordance with Applicable Procedures, Section 5.02(b) and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), and all required items pursuant to Section
5.02(b)(v), the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar as custodian of the Book-Entry Certificates shall increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be credited
to the account of the Person specified in such instructions a corresponding
Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered to the
Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicers,
the Special Servicer, the Paying Agent, the Trustee, the Certificate Registrar
and any agents of any of them may treat the person in whose name such
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder," and none of the Depositor, the Master Servicers, the
Special Servicer, the Paying Agent, the Trustee, the Certificate Registrar and
any agent of any of them shall be affected by notice to the contrary except as
provided in Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Paying Agent shall make such determination
based on a certificate of such Person which shall be addressed to the Paying
Agent and shall specify, in reasonable detail satisfactory to the Paying Agent,
such Person's name and address, the Class and Certificate Balance or Notional
Amount of the Regular Certificate beneficially owned, and any intermediaries
through which such Person's interest in such Regular Certificate is held (any
such certification, other than one which the Paying Agent shall refuse to
recognize pursuant to the following procedures, a "Certificate Ownership
Certification"); provided, however, that the Paying Agent shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the actual
knowledge of a Responsible Officer of such party, acquired its interest in a
Regular Certificate in violation of the transfer restrictions herein, or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Paying Agent from the Depository or any Depository
Participant with respect to the identity of a Certificate Owner; provided,
however, that to the extent the Paying Agent is required to obtain such
Certificate Owner information from the Depository or any Depository Participant,
the Paying Agent shall be reimbursed for any cost or expense in obtaining such
information from the Distribution Account. The Paying Agent may conclusively
rely on such Certificate Ownership Certification. Each Master Servicer will only
be required to acknowledge the status of any Person as a Certificateholder or
Certificate Owner to the extent that the Paying Agent, at the request of such
Master Servicer, identifies such Person as a Certificateholder or Certificate
Owner.
Section 5.07 Appointment of Paying Agent.
(a) LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, is hereby initially appointed
Paying Agent to act on the Trustee's behalf in accordance with the terms of this
Agreement. If the Paying Agent resigns or is terminated, the Trustee shall
appoint a successor Paying Agent which may be the Trustee or an Affiliate
thereof to fulfill the obligations of the Paying Agent hereunder which must be
(i) a corporation, national bank, national banking association or a trust
company, organized and doing business under the laws of any state or the United
States of America, authorized under such laws to exercise corporate trust powers
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "Aa3" by Xxxxx'x, "AA" by S&P and "AA" by Fitch (or such entity as would
not, as evidenced in writing by such Rating Agency, result in the qualification,
downgrading or withdrawal of any of the ratings then assigned thereby to the
Certificates).
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Master Servicers or the Special Servicer or of the
Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicers and
the Special Servicer. The Depositor, the Master Servicers and the Special
Servicer shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicers and the Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicers or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicers and the Special Servicer each will
keep in full effect its existence, rights and franchises as a corporation under
the laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
(b) The Depositor, the Master Servicers and the Special Servicer
each may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, any Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, any Master Servicer or the
Special Servicer, shall be the successor of the Depositor, any Master Servicer
and the Special Servicer, as the case may be, hereunder, without the execution
or filing of any paper (other than an assumption agreement wherein the successor
shall agree to perform the obligations of and serve as the Depositor, the
applicable Master Servicer or the Special Servicer, as the case may be, in
accordance with the terms of this Agreement) or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such merger, consolidation or succession will not result
in a withdrawal, downgrading or qualification of the then-current ratings of the
Classes of Certificates that have been so rated (as evidenced by a letter to
such effect from each Rating Agency).
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicers, the Special Servicer and Others. (a) None of the Depositor, the
Master Servicers, the Special Servicer and their respective Affiliates or any of
the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust, the Certificateholders or the Companion
Holders 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 Depositor, the Master
Servicers, the Special Servicer and their respective Affiliates or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of negligent
disregard of obligations and duties hereunder. The Depositor, the Master
Servicers and the Special Servicer and their respective Affiliates and any
director, officer, member, manager, employee or agent of the Depositor, such
Master Servicer or the Special Servicer and their respective Affiliates may rely
on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Master Servicers (including in their capacities as Companion Paying Agents),
the Special Servicer and their respective Affiliates and any director, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, the Companion Loans or the Certificates, other than any loss, liability
or expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of negligent disregard of such obligations or duties; or
(iv) in the case of the Depositor and any of its directors, officers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities law. Each of the Master Servicers and the Special
Servicer may rely, and shall be protected in acting or refraining from acting
upon, any resolution, officer's certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, financial statement, agreement, appraisal, bond or other
document (in electronic or paper format) as contemplated by and in accordance
with this Agreement and reasonably believed or in good faith believed by such
Master Servicer or the Special Servicer to be genuine and to have been signed or
presented by the proper party or parties and each of them may consult with
counsel, in which case any written advice of counsel or Opinion of Counsel shall
be full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel.
(b) None of the Depositor, the Master Servicers and the Special
Servicer shall 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 expense or
liability not recoverable from the Trust Fund; provided, however, that the
Depositor, each Master Servicer or the Special Servicer may in its discretion
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 and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, each Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans and Companion Loans on deposit in the
Certificate Accounts, as provided by Section 3.05(a).
(c) Each of the Master Servicers and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of any
willful misfeasance, bad faith or negligence of such Master Servicer or the
Special Servicer, as the case may be, in the performance of its obligations and
duties under this Agreement or by reason of negligent disregard by such Master
Servicer or the Special Servicer, as the case may be, 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. The Trustee, the Paying Agent or the Depositor, as the
case may be, shall immediately notify the applicable Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Trust to
indemnification hereunder, whereupon such Master Servicer or the Special
Servicer, as the case may be, shall assume the defense of such claim (with
counsel reasonably satisfactory to the Trustee, the Paying Agent or the
Depositor) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the applicable Master Servicer or the Special Servicer, as the case may be,
shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless such Master
Servicer's, or the Special Servicer's, as the case may be, defense of such claim
is materially prejudiced thereby.
(d) Each of the Trustee and the Paying Agent, respectively (and not
jointly and severally) agrees to indemnify each Master Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Trustee or the Paying Agent, respectively, in the performance of its obligations
and duties under this Agreement or by reason of negligent disregard by the
Trustee or the Paying Agent, respectively, 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 Master Servicer or the Special Servicer, as the case may be, shall
immediately notify the Trustee and the Paying Agent, respectively, if a claim is
made by a third party with respect to this Agreement, whereupon the Trustee or
the Paying Agent shall assume the defense of such claim (with counsel reasonably
satisfactory to the Master Servicers or the Special Servicer) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Trustee or the
Paying Agent shall not affect any rights any of the foregoing Persons may have
to indemnification under this Agreement or otherwise, unless the Trustee's or
the Paying Agent's defense of such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify each Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor 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 Master Servicer or the Special Servicer, as the
case may be, shall immediately notify the Depositor if a claim is made by a
third party with respect to this Agreement, whereupon the Depositor shall assume
the defense of such claim (with counsel reasonably satisfactory to the Master
Servicers or the Special Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of each Master Servicer, the
Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Master Servicers and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Master Servicers nor the
Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) in the
case of each Master Servicer, upon the appointment of, and the acceptance of
such appointment by, a successor Master Servicer and receipt by the Trustee of
written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates or any class of Companion Loan Securities. Only the
applicable Master Servicer shall be permitted to resign pursuant to clause (b)
above. Any such determination permitting the resignation of any Master Servicer
or the Special Servicer pursuant to clause (a) above shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee and the Directing Certificateholder. No such
resignation by any Master Servicer or the Special Servicer shall become
effective until the Trustee or a successor Master Servicer or successor Special
Servicer, as applicable, shall have assumed such Master Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Upon any termination or resignation of any Master Servicer
hereunder, such Master Servicer shall have the right and opportunity to appoint
any successor Master Servicer with respect to this Section 6.04, provided that
such successor Master Servicer is approved by the Directing Certificateholder,
such approval not to be unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicers and the Special Servicer. The Depositor may, but is not obligated to,
enforce the obligations of each Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of any Master Servicer and the Special
Servicer hereunder or exercise the rights of any Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, that each Master Servicer
and the Special Servicer shall not be relieved of any of their respective
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by each Master Servicer or the Special Servicer and is
not obligated to supervise the performance of each Master Servicer or the
Special Servicer under this Agreement or otherwise.
Section 6.06 The Master Servicers and the Special Servicer as
Certificate Owner. Each Master Servicer, the Special Servicer or any Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not a Master Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder. The Directing
Certificateholder shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer and
the applicable Master Servicer with respect to Non-Specially Serviced Mortgage
Loans as to which such Master Servicer must obtain the consent or deemed consent
of the Special Servicer, and (3) the Special Servicer with respect to all
Mortgage Loans for which an extension of maturity is being considered by the
Special Servicer or by the applicable Master Servicer subject to consent or
deemed consent of the Special Servicer, and notwithstanding anything herein to
the contrary, except as set forth in, and in any event subject to, Section
3.08(f) and the second and third paragraphs of this Section 6.07, the applicable
Master Servicer or Special Servicer, as the case may be, shall not be permitted
to take any of the following actions as to which the Directing Certificateholder
has objected in writing within ten (10) Business Days of being notified thereof
(provided that if such written objection has not been received by such Master
Servicer or the Special Servicer, as applicable, within such ten (10) Business
Day period, then the Directing Certificateholder will be deemed to have waived
its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs)
of a Mortgage Loan or any extension of the maturity date of any Mortgage
Loan (provided that with respect to the One & Two Prudential Plaza Whole
Loan, any extension will not be more than two years from the Maturity Date
of such Mortgage Loan);
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the borrower or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes or franchise changes
with respect to a Mortgage Loan with a principal balance greater than
$2,500,000 for which such Master Servicer is required to consent or
approve;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves, other than those required
pursuant to the specific terms of the Mortgage Loans with no material
lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default;
provided that, in the event that the Special Servicer or the applicable Master
Servicer (in the event such Master Servicer is otherwise authorized by this
Agreement to take such action), as applicable, determines that immediate action
is necessary to protect the interests of the Certificateholders (as a collective
whole), the Special Servicer or such Master Servicer, as applicable may take any
such action without waiting for the Directing Certificateholder's response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of the related Companion Holder to advise the Special Servicer with
respect to the related Loan Pair pursuant to the terms of the related
Intercreditor Agreement, may direct the Special Servicer to take, or to refrain
from taking, such other actions with respect to a Mortgage Loan, as the
Directing Certificateholder may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary, no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
any Mortgage Loan, applicable law, this Agreement or the REMIC Provisions,
including without limitation the Special Servicer's obligation to act in
accordance with the Servicing Standards, or expose each Master Servicer, the
Special Servicer, the Paying Agent, the Trust Fund or the Trustee to liability,
or materially expand the scope of the Special Servicer's responsibilities
hereunder or cause the Special Servicer to act, or fail to act, in a manner
which in the reasonable judgment of the Special Servicer is not in the best
interests of the Certificateholders.
In the event the Special Servicer or any Master Servicer, as
applicable, determines that a refusal to consent by the Directing
Certificateholder or any advice from the Directing Certificateholder would
otherwise cause the Special Servicer or such Master Servicer, as applicable, to
violate the terms of any Mortgage Loan, applicable law, or this Agreement,
including without limitation, the Servicing Standards, the Special Servicer or
such Master Servicer, as applicable, shall disregard such refusal to consent or
advise and notify the Directing Certificateholder, the Trustee and the Rating
Agencies of its determination, including a reasonably detailed explanation of
the basis therefor. The taking of, or refraining from taking, any action by the
applicable Master Servicer or Special Servicer in accordance with the direction
of or approval of the Directing Certificateholder that does not violate any law
or the Servicing Standards or any other provisions of this Agreement, will not
result in any liability on the part of the applicable Master Servicer or the
Special Servicer.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action, or for errors in judgment; provided, however, that the
Directing Certificateholder shall not be protected against any liability to the
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates including the Holders of the Controlling Class, over
other Classes of the Certificates, and that the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
some Classes of the Certificates, that the Directing Certificateholder may act
solely in the interests of the Holders of the Controlling Class, that the
Directing Certificateholder does not have any duties or liability to the Holders
of any Class of Certificates, other than the Controlling Class, that the
Directing Certificateholder shall not be liable to any Certificateholder, by
reason of its having acted solely in the interests of the Holders of the
Controlling Class, and that the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination. (a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the applicable Master Servicer to make any
deposit required to be made by that Master Servicer to the Certificate
Account on the day and by the time such deposit is required to be made
under the terms of this Agreement, which failure is not remedied within
one Business Day or (B) any failure by the applicable Master Servicer to
deposit into, or remit to the Paying Agent, for deposit into, any
Distribution Account or any failure of either Master Servicer to deposit
into the related Companion Distribution Account any amount required to be
so deposited or remitted, which failure in either case is not remedied by
11:00 a.m. (New York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within two Business Days after such deposit is required to be
made or to remit to the applicable Master Servicer for deposit into the
Certificate Account or to deposit into, or to remit to the Paying Agent
for deposit into, the Lower-Tier Distribution Account any amount required
to be so deposited or remitted by the Special Servicer pursuant to, and at
the time specified by, the terms of this Agreement; or
(iii) any failure on the part of the applicable Master Servicer or
the Special Servicer duly to observe or perform in any material respect
any of its other covenants or obligations contained in this Agreement
which continues unremedied for a period of 30 days (5 Business Days in the
case of a Master Servicer's or Special Servicer's obligations under
Article XI hereof required to fulfill Exchange Act reporting requriements
during any period that the Trust is subject to the reporting requirements
of the Exchange Act (and 30 days in the case of each Master Servicer and
Special Servicer during any period that the Trust is not subject to the
reporting requirements of the Exchange Act), 15 days in the case of the
applicable Master Servicer's failure to make a Servicing Advance or 15
days in the case of a failure to pay the premium for any insurance policy
required to be maintained hereunder) after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given (A) to the applicable Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or (B) to the applicable
Master Servicer or the Special Servicer, as the case may be, with a copy
to each other party to this Agreement, by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25%, or with
respect to the One & Two Prudential Plaza Mortgage Loan, by the holder of
the One & Two Prudential Plaza A2 Note; provided, however, if such failure
is capable of being cured and the applicable Master Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30-day
period will be extended an additional 30 days; or
(iv) any breach on the part of the applicable Master Servicer or the
Special Servicer of any representation or warranty contained in Section
3.23 or Section 3.24, as applicable, which materially and adversely
affects the interests of any Class of Certificateholders or Companion
Holders and which continues unremedied for a period of 30 days after the
date on which notice of such breach, requiring the same to be remedied,
shall have been given to the Master Servicers or the Special Servicer, as
the case may be, by the Depositor, the Paying Agent or the Trustee, or to
the Master Servicers, the Special Servicer, the Depositor, the Paying
Agent and the Trustee by the Holders of Certificates evidencing Percentage
Interests aggregating not less than 25%; provided, however, if such breach
is capable of being cured and the applicable Master Servicer or Special
Servicer, as the case may be, is diligently pursuing such cure, such
30-day period will be extended an additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the applicable Master Servicer or the Special Servicer and such decree or
order shall have remained in force undischarged, undismissed or unstayed
for a period of 60 days; or
(vi) the applicable Master Servicer or the Special 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 such Master Servicer or the Special Servicer or of or relating to all
or substantially all of its property; or
(vii) the applicable Master Servicer or the Special 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
(viii) a servicing officer of the applicable Master Servicer or
Special Servicer, as applicable, obtains actual knowledge that Xxxxx'x has
(i) qualified, downgraded or withdrawn its rating or ratings of one or
more Classes of Certificates, or (ii) has placed one or more Classes of
Certificates on "watch status" in contemplation of a ratings downgrade or
withdrawal (and such "watch status" placement shall not have been
withdrawn by Xxxxx'x within 60 days of the date such servicing officer
obtained such actual knowledge) and, in the case of either of clauses (i)
or (ii), cited servicing concerns with the applicable Master Servicer or
Special Servicer, as applicable, as the sole or material factor in such
rating action; or
(ix) the applicable Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not reinstated to S&P's Select Servicer List within 30
days of such removal and any of the ratings assigned to the Certificates
have been qualified, downgraded or withdrawn in connection with such a
delisting; or
(x) the applicable Master Servicer or the Special Servicer is no
longer rated at least "CMS3" or "CSS3", respectively, by Fitch and such
Master Servicer or Special Servicer is not reinstated to that rating
within 30 days of the delisting, and any of the ratings assigned to the
Certificates have been qualified, downgraded or withdrawn in connection
with such rating change.
(b) If any Event of Default with respect to any Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") 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
Trustee or the Depositor may, and at the written direction (of the Directing
Certificateholder) or the Holders of Certificates entitled to at least 51% of
the Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, that the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of any Master Servicer or the Special Servicer pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, 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. Each Master Servicer and Special Servicer each
agree that if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 20 Business Days subsequent to its
receipt of the notice of termination) provide the Trustee, with all documents
and records requested by it to enable it to assume the applicable Master
Servicer's or the Special Servicer's, as the case may be, functions hereunder,
and shall cooperate with the Trustee in effecting the termination of such Master
Servicer's or the Special Servicer's, as the case may be, responsibilities and
rights (subject to Section 3.11 and Section 6.03) hereunder, including, without
limitation, the transfer within 5 Business Days to the Trustee or the applicable
Master Servicer, as applicable, for administration by it of all cash amounts
which shall at the time be or should have been credited by such Master Servicer
to the applicable Certificate Account or any Servicing Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
or any REO Property (provided, however, that each Master Servicer and the
Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
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, whether in respect of
Advances (in the case of the Special Servicer or the applicable Master Servicer)
or otherwise, and it and its Affiliates and the directors, managers, officers,
members, employees and agents of it and its Affiliates shall continue to be
entitled to the benefits of Section 3.11 and Section 6.03 notwithstanding any
such termination).
(c) If any Master Servicer receives notice of termination solely due
to an Event of Default under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(viii) through (x) and if such Master Servicer to be
terminated pursuant to Section 7.01(b) provides the Trustee with the appropriate
"request for proposal" materials within five (5) Business Days following such
termination notice, then such Master Servicer shall continue to service as
Master Servicer hereunder until a successor Master Servicer is selected in
accordance with this Section 7.01(c). Upon receipt of the "request for proposal"
materials, Trustee shall promptly thereafter (using such "request for proposal"
materials provided by such Master Servicer pursuant to Section 7.01(b)) solicit
good faith bids for the rights to service the Mortgage Loans and Companion Loans
under this Agreement from at least three (3) Persons qualified to act as Master
Servicer hereunder in accordance with Sections 6.02 and 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the applicable Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided, further, that the Trustee shall not be responsible if less
than three (3) or no Qualified Bidders submit bids for the right to service the
Mortgage Loans and Companion Loans under this Agreement. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as successor Master Servicer, and to agree to be bound
by the terms hereof, including but not limited to Section 3.11, within 45 days
after the notice of termination of the applicable Master Servicer. The materials
provided to the Trustee shall provide for soliciting bids: (i) on the basis of
such successor Master Servicer retaining all Sub-Servicers to continue the
primary servicing of the Mortgage Loans and Companion Loans pursuant to the
terms of the respective Sub-Servicing Agreements (each, a "Servicing-Retained
Bid"); and (ii) on the basis of terminating each Sub-Servicing Agreement and
Sub-Servicer that it is permitted to terminate in accordance with Section 3.22
(each, a "Servicing-Released Bid"). The Trustee shall select the Qualified
Bidder with the highest cash Servicing-Retained Bid (or, if none, the highest
cash Servicing-Released Bid) (the "Successful Bidder") to act as successor
Master Servicer hereunder; provided, however, that if the Trustee does not
receive confirmation in writing by each Rating Agency that the appointment of
such Successful Bidder as successor Master Servicer will not result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any Class of Certificates or class of Companion Loan Securities within
10 days after the selection of such Successful Bidder, then the Trustee shall
repeat the bid process described above (but subject to the above-described
45-day time period) until such confirmation is obtained. The Trustee shall
direct the Successful Bidder to enter into this Agreement as successor Master
Servicer pursuant to the terms hereof no later than 45 days after notice of the
termination of the applicable Master Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the applicable Master Servicer to be
terminated pursuant to Section 7.01(b), the amount of such cash bid received
from the Successful Bidder (net of "out-of-pocket" expenses incurred in
connection with obtaining such bid and transferring servicing) and (ii) if the
successful bid was a Servicing-Released Bid, to the Master Servicer and each
terminated Sub-Servicer its respective Bid Allocation.
The applicable Master Servicer to be terminated pursuant to Section
7.01(b) shall be responsible for all out-of-pocket expenses incurred in
connection with the attempt to sell its rights to service the Mortgage Loans,
which expenses are not reimbursed to the party that incurred such expenses
pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
applicable Master Servicer to be terminated pursuant to Section 7.01(b) shall
reimburse the Trustee for all reasonable "out-of-pocket" expenses incurred by
the Trustee in connection with such bid process and the Trustee shall have no
further obligations under this Section 7.01(c). The Trustee thereafter may act
or may select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Subject to the rights of the related Companion Holders pursuant
to the related Intercreditor Agreement, the Directing Certificateholder shall be
entitled to terminate the rights (subject to Section 3.11 and Section 6.03(d))
and obligations of the Special Servicer under this Agreement, with or without
cause, upon ten (10) Business Days' notice to the Special Servicer, the Master
Servicers, the Paying Agent and the Trustee; such termination to be effective
upon the appointment of a successor Special Servicer meeting the requirements of
this Section 7.01(d). Upon a termination or resignation of such Special
Servicer, the Directing Certificateholder shall appoint a successor Special
Servicer; provided, however, that (i) such successor will meet the requirements
set forth in Section 7.02 and (ii) as evidenced in writing by each of the Rating
Agencies, the proposed successor of such Special Servicer will not, in and of
itself, result in a downgrading, withdrawal or qualification of the then-current
ratings provided by the Rating Agencies in respect to any Class of then
outstanding Certificates that is rated or, insofar as there is then outstanding
any class of Companion Loan Securities that is then rated by such Rating Agency,
in a similar event with respect to such class of Companion Loan Securities.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to this Section 7.01(e). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time a Master Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(b), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the
applicable Master Servicer or the Special Servicer, until such successor is
appointed by the Directing Certificateholder as provided in Section 7.01(d), as
applicable, in all respects in its capacity as a Master Servicer or Special
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to, and have the benefit of, all of the rights,
(subject to Section 3.11 and Section 6.03) benefits, responsibilities, duties,
liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of a Master Servicer or Special Servicer
by the terms and provisions hereof; provided, however, that any failure to
perform such duties or responsibilities caused by the terminated party's failure
under Section 7.01 to provide information or moneys required hereunder shall not
be considered a default by such successor hereunder. The appointment of a
successor Master Servicer shall not affect any liability of the predecessor
Master Servicer which may have arisen prior to its termination as Master
Servicer, and the appointment of a successor Special Servicer shall not affect
any liability of the predecessor Special Servicer which may have arisen prior to
its termination as Special Servicer. The Trustee, in its capacity as successor
to a Master Servicer or the Special Servicer, as the case may be, shall not be
liable for any of the representations and warranties of such Master Servicer or
the Special Servicer, respectively, herein or in any related document or
agreement, for any acts or omissions of such Master Servicer or Special Servicer
or for any losses incurred by the such Master Servicer pursuant to Section 3.06
hereunder, nor shall the Trustee be required to purchase any Mortgage Loan
hereunder solely as a result of its obligations as successor Master Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Master Servicer shall be entitled to the
Servicing Fees and all fees relating to the Mortgage Loans or Companion Loans
(to the extent permitted in the related Intercreditor Agreements) which such
Master Servicer would have been entitled to if such Master Servicer had
continued to act hereunder, including but not limited to any income or other
benefit from any Permitted Investment pursuant to Section 3.06, and subject to
Section 3.11, the Trustee as successor to the Special Servicer shall be entitled
to the Special Servicing Fees to which the Special Servicer would have been
entitled if the Special Servicer had continued to act hereunder. Should the
Trustee succeed to the capacity of a Master Servicer or the Special Servicer, as
the case may be, the Trustee shall be afforded the same standard of care and
liability as such Master Servicer or the Special Servicer, as applicable,
hereunder notwithstanding anything in Section 8.01 to the contrary, but only
with respect to actions taken by it in its role as successor Master Servicer or
successor Special Servicer, as the case may be, and not with respect to its role
as Trustee hereunder. Notwithstanding the above, the Trustee may, if it shall be
unwilling to act as successor to the Master Servicer or the Special Servicer, or
shall, if it is unable to so act, or if the Trustee is not approved as a
servicer by each Rating Agency, or if the Directing Certificateholder or the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth in Section 6.04 and otherwise herein, as the
successor to a Master Servicer or the Special Servicer, as applicable, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of such Master Servicer or Special Servicer hereunder. No
appointment of a successor to a Master Servicer or the Special Servicer
hereunder shall be effective until the assumption in writing by the successor to
the applicable Master Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter and
upon Rating Agency confirmation, and which appointment has been approved by the
Directing Certificateholder, such approval not to be unreasonably withheld.
Pending appointment of a successor to a Master Servicer or the Special Servicer
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided. In connection with
such appointment and assumption of a successor to a Master Servicer or Special
Servicer as described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation with respect
to a successor Master Servicer or successor Special Servicer, as the case may
be, shall be in excess of that permitted the terminated Master Servicer or
Special Servicer, as the case may be, hereunder. The Trustee, each Master
Servicer or the Special Servicer (whichever is not the terminated party) and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Any costs and expenses
associated with the transfer of the servicing function (other than with respect
to a termination without cause) under this Agreement shall be borne by the
predecessor master servicer or special servicer, as applicable.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of any Master Servicer or the Special Servicer pursuant to Section
6.04, any termination of any Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to any Master Servicer or the
Special Servicer pursuant to Section 7.02, the Paying Agent shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders (and, if the One & Two Prudential Plaza Whole Loan is
affected, the One & Two Prudential Plaza A2 Noteholder) notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 66 2/3% of the Voting Rights allocated to
each Class of Certificates affected by any Event of Default hereunder may waive
such Event of Default within 20 days of the receipt of notice from the Paying
Agent of the occurrence of such Event of Default; provided, however, that an
Event of Default under clause (i) of Section 7.01(a) may be waived only by all
of the Certificateholders of the affected Classes. Upon any such waiver of an
Event of Default, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. Upon any such waiver of an
Event of Default by Certificateholders, the Trustee shall be entitled to recover
all costs and expenses incurred by it in connection with enforcement action
taken with respect to such Event of Default prior to such waiver from the Trust
Fund. No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that any
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within the earlier of (i) five Business Days following such failure by such
Master Servicer with respect to Servicing Advances resulting in an Event of
Default under Section 7.01(a)(iii) hereof and (ii) the date necessary to avoid a
foreclosure of liens for delinquent real estate taxes, a lapse in insurance
coverage or a breach under any Ground Lease for the failure to pay any rents, in
each case to the extent a Responsible Officer of the Trustee has actual
knowledge of such failure with respect to such Servicing Advances and (y) by
noon, New York City time, on the related Distribution Date with respect to P&I
Advances pursuant to the Paying Agent's notice of failure pursuant to Section
4.03(a) unless such failure has been cured. With respect to any such Advance
made by the Trustee, the Trustee shall succeed to all of the applicable Master
Servicer's rights with respect to Advances hereunder, including, without
limitation, such Master Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Master Servicer's default in its obligations hereunder); provided,
however, that if Advances made by the Trustee and any Master Servicer shall at
any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and the interest thereon
hereunder shall be applied entirely to the Advances outstanding to the Trustee,
until such Advances shall have been repaid in full, together with all interest
accrued thereon, prior to reimbursement of such Master Servicer for such
Advances. The Trustee shall be entitled to conclusively rely on any notice given
with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent. (a) The
Trustee and the Paying Agent, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee and the Paying Agent
contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, any Master Servicer or the Special Servicer or another Person, and
accepted by the Trustee or the Paying Agent in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available via its internet
website initially located at "xxx.xxxxxxxx.xxx" to the Companion Holders all
reports that the Paying Agent has made available to Certificateholders under
this Agreement.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee or the Paying Agent of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of any Master Servicer or the Special Servicer
(unless the Trustee is acting as a Master Servicer or Special Servicer, as
the case may be in which case the Trustee shall only be responsible for
its own actions as a Master Servicer or Special Servicer) or of the
Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and
in the Certificates, other than the acknowledgments of the Trustee or the Paying
Agent in Sections 2.02 and 2.05 and the signature, if any, of the Certificate
Registrar and Authenticating Agent set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, each Master Servicer or the
Special Servicer, as the case may be, and the Trustee or the Paying Agent assume
no responsibility for their correctness. Neither the Trustee nor the Paying
Agent makes any representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature, if any, of the
Trustee or the Paying Agent set forth thereon) or of any Mortgage Loan or
related document. Neither the Trustee nor the Paying Agent shall be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from the applicable
Certificate Account or any other account by or on behalf of the Depositor, each
Master Servicer, the Special Servicer or in the case of the Trustee, the Paying
Agent (unless the Trustee is acting as Paying Agent). The Trustee and the Paying
Agent shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, any Master Servicer or the Special Servicer and
accepted by the Trustee or the Paying Agent, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates. The
Trustee or the Paying Agent each in its individual capacity, not as Trustee or
the Paying Agent, may become the owner or pledgee of Certificates, and may deal
with the Depositor, each Master Servicer, the Special Servicer, the Initial
Purchasers and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent. (a) As compensation for the
performance of their respective duties hereunder, the Trustee will be paid the
Trustee Fee and the Paying Agent will be paid the Paying Agent Fee, in each
case, equal to the Trustee's and the Paying Agent's respective portion of one
month's interest at the Trustee Fee Rate, which shall cover recurring and
otherwise reasonably anticipated expenses of the Trustee and the Paying Agent,
respectively. The Trustee Fee shall be paid monthly on a Mortgage
Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan, the Trustee
Fee and the Paying Agent Fee shall accrue from time to time at the Trustee's and
the Paying Agent's respective portion of the Trustee Fee Rate and shall be
computed on the basis of the Stated Principal Balance of such Mortgage Loan and
a 360-day year consisting of twelve 30-day months. The Trustee Fee and the
Paying Agent Fee (which shall not be limited to any provision of law in regard
to the compensation of a trustee of an express trust) shall constitute the
Trustee's and the Paying Agent's, respectively, sole form of compensation for
all services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties of the Trustee and
the Paying Agent hereunder. No Trustee Fee shall be payable with respect to the
Companion Loans.
(b) The Trustee, the Paying Agent and any director, officer,
employee or agent of the Trustee and the Paying Agent, respectively, shall be
entitled to be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Certificate Accounts or Lower-Tier Distribution
Account from time to time) against any loss, liability or expense (including,
without limitation, costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement, and expenses
incurred in becoming successor master servicer or successor special servicer, to
the extent not otherwise paid hereunder) arising out of, or incurred in
connection with, any act or omission of the Trustee or the Paying Agent,
respectively, relating to the exercise and performance of any of the powers and
duties of the Trustee or the Paying Agent, respectively, hereunder; provided,
however, that none of the Trustee, the Paying Agent nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or
made by or on behalf of the Trustee or the Paying Agent, respectively, in the
normal course of the Trustee or the Paying Agent, respectively, performing its
duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's or the Paying Agent's, respectively,
obligations and duties hereunder, or by reason of negligent disregard of such
obligations or duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee or the Paying Agent, respectively, made
herein. The provisions of this Section 8.05(b) shall survive the termination of
this Agreement and any resignation or removal of the Trustee or the Paying
Agent, respectively, and appointment of a successor thereto. The foregoing
indemnity shall also apply to the Paying Agent in its capacities of Certificate
Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and the Paying
Agent. The Trustee and the Paying Agent hereunder shall at all times be, and
will be required to resign if it fails to be, (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of any Master Servicer or the Special
Servicer (except during any period when the Trustee is acting as, or has become
successor to, any Master Servicer or the Special Servicer, as the case may be,
pursuant to Section 7.02), (ii) an institution insured by the Federal Deposit
Insurance Corporation and (iii) with respect to the Trustee only, an institution
whose long-term senior unsecured debt is rated "AA-" by Fitch and S&P and "Aa3"
by Xxxxx'x, (or such other rating as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any of
the ratings then assigned thereby to the Certificates or any class of Companion
Loan Securities; provided that the Trustee shall not cease to be eligible to
serve as such based on a failure to satisfy such rating requirements so long as
the Trustee maintains a long-term unsecured debt rating of no less than "BBB"
from each of S&P and Fitch and "Baa2" from Xxxxx'x (or such rating as would not,
as evidenced in writing by such Rating Agency, result in a qualification,
downgrading or withdrawal of any of the ratings assigned to the Certificates or
any class of Companion Loan Securities).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC and the Lower-Tier REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent. (a) The Trustee and/or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, each Master Servicer and the Special Servicer and the Swap
Counterparty and the Trustee or the Paying Agent, as applicable, and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee or paying agent acceptable to each
Master Servicer and the Directing Certificateholder by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee or
Paying Agent and to the successor trustee or paying agent. A copy of such
instrument shall be delivered to each Master Servicer, the Special Servicer, the
Certificateholders, the Swap Counterparty and the Trustee or Paying Agent, as
applicable, by the Depositor. If no successor trustee or paying agent shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee or Paying Agent may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 (and in the case of
the Paying Agent, Section 5.07) and shall fail to resign after written request
therefor by the Depositor or any Master Servicer, or if at any time the Trustee
or Paying Agent shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or the Paying Agent or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or Paying Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if the Trustee or Paying Agent
(if different than the Trustee) shall fail (other than by reason of the failure
of either the applicable Master Servicer or the Special Servicer to timely
perform its obligations hereunder or as a result of other circumstances beyond
the Trustee's or Paying Agent's, as applicable, reasonable control), to timely
publish any report to be delivered, published or otherwise made available by the
Trustee or Paying Agent pursuant to Section 4.02 and such failure shall continue
unremedied for a period of five days, or if the Trustee or Paying Agent fails to
make distributions required pursuant to Sections 3.05(c), 4.01 or 9.01, then the
Depositor may remove the Trustee or Paying Agent, as applicable, and appoint a
successor trustee or paying agent acceptable to each Master Servicer or paying
agent acceptable to the Trustee or Paying Agent, as applicable, by written
instrument, in duplicate, which instrument shall be delivered to the Trustee or
Paying Agent so removed and to the successor trustee or paying agent in the case
of the removal of the Trustee or Paying Agent. A copy of such instrument shall
be delivered to each Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to each Master
Servicer, one complete set to the Trustee or Paying Agent so removed and one
complete set to the successor so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by each Master Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent. (a) Any successor
Trustee or Paying Agent appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, each Master Servicer, the Special
Servicer and to its predecessor Trustee or Paying Agent an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent shall become effective and such successor
Trustee or Paying Agent without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Paying Agent herein. The predecessor Trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian, at Custodian's option shall become the agent of the
successor Trustee), and the Depositor, each Master Servicer, the Special
Servicer and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor trustee or successor paying agent shall, as
applicable, accept appointment as provided in this Section 8.08 unless at the
time of such acceptance such successor trustee or successor paying agent, as
applicable, shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee or
successor paying agent as provided in this Section 8.08, Master Servicer No. 1
shall mail notice of the succession of such trustee or paying agent, as
applicable, to the Depositor and the Certificateholders. If Master Servicer No.
1 fails to mail such notice within 10 days after the acceptance of appointment
by the successor trustee or successor paying agent, as applicable, such
successor trustee or successor paying agent shall cause such notice to be mailed
at the expense of Master Servicer No. 1.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent. Any
Person into which the Trustee or the Paying Agent may be merged or converted or
with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee or the Paying Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee or the Paying Agent shall be the successor of the
Trustee or the Paying Agent, as applicable, hereunder; provided, that, in the
case of the Trustee, such successor Person shall be eligible under the
provisions of Section 8.06, 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. The Trustee or the Paying Agent, as applicable, will
provide notice of such event to the Master Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing Group A Mortgage Loans or Group B Mortgage Loans
may at the time be located, the applicable Master Servicer and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the applicable Master Servicer and the
Trustee may consider necessary or desirable. If the applicable Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. All co-trustee fees
shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to any Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians. The Trustee may appoint one
or more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. Any Custodian appointed hereunder must maintain
a fidelity bond and errors and omissions policy in an amount customary for
Custodians which serve in such capacity in commercial mortgage loan
securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Paying Agent and the Trustee three
copies of any private placement memorandum or other disclosure document used by
the Depositor or its Affiliate in connection with the offer and sale of the
Class of Certificates to which such Non-Registered Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee and the Paying Agent, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Paying Agent and the Trustee a
copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Paying Agent (or with respect to items (ii)(h) and
(j) below, the Trustee) shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance notice, make
available during normal business hours for review by any Holder of a
Certificate, the Depositor, each Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Paying Agent (or the Trustee, if
applicable) believes such disclosure is appropriate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other disclosure
document relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Paying Agent and
(ii) in all cases, including the One & Two Prudential Plaza A2 Noteholder (a)
this Agreement and any amendments hereto entered into pursuant to Section 12.01,
(b) all statements required to be delivered to Certificateholders of the
relevant Class pursuant to Section 4.02 since the Closing Date, (c) all
Officer's Certificates delivered to the Paying Agent and the Trustee since the
Closing Date pursuant to Section 11.09, (d) all accountants' reports delivered
to the Trustee and the Paying Agent since the Closing Date pursuant to Section
11.11, (e) any inspection report prepared by any Master Servicer, Sub-Servicer
or Special Servicer, as applicable, and delivered to the Trustee and the Paying
Agent and the applicable Master Servicer in respect of each Mortgaged Property
pursuant to Section 3.12(a), (f) as to each Mortgage Loan and Companion Loan
pursuant to which the related Mortgagor is required to deliver such items or the
Special Servicer has otherwise acquired such items, the most recent annual
operating statement and rent roll of the related Mortgaged Property and
financial statements of the related Mortgagor and any other reports of the
Mortgagor collected by the applicable Master Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Paying Agent pursuant to Section
3.12(c), together with the accompanying written reports to be prepared by the
Special Servicer and delivered to the Paying Agent pursuant to Section 3.12(b),
(g) any and all notices, reports and Environmental Assessments delivered to the
Paying Agent with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan and Companion Loan as to which the environmental testing
contemplated by Section 3.09(c) revealed that either of the conditions set forth
in clauses (i) and (ii) of the first sentence thereof was not satisfied (but
only for so long as such Mortgaged Property or the related Mortgage Loan are
part of the Trust Fund), (h) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan and Companion Loan entered into by the
applicable Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but only for so long as the affected Mortgage Loan and
Companion Loan is part of the Trust Fund), (i) any and all Officer's
Certificates delivered to the Paying Agent to support the applicable Master
Servicer's determination that any P&I Advance or Servicing Advance was or, if
made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
as the case may be, (j) any and all of the Mortgage Loan and Companion Loan
documents contained in the Mortgage File, (k) any and all Appraisals obtained
pursuant to the definition of "Appraisal Reduction" herein, (l) information
regarding the occurrence of Servicing Transfer Events as to the Mortgage Loans
and (m) any and all Sub-Servicing Agreements and any amendments thereto and
modifications thereof. Copies of any and all of the foregoing items will be
available from the Paying Agent upon request; provided, however, that the Paying
Agent (or the Trustee, if applicable) shall be permitted to require payment of a
sum sufficient to cover the reasonable costs and expenses of providing such
copies, except in the case of copies provided to the Directing Certificateholder
or the Rating Agencies, which shall be free of charge (except for extraordinary
or duplicate requests). In addition, without limiting the generality of the
foregoing, any Class K, Class L, Class M, Class N, Class P, Class Q and Class NR
Certificateholder may upon request from the Paying Agent obtain a copy of any
factual report (other than the Asset Status Report) delivered to the Rating
Agencies under this Agreement.
(b) The Paying Agent shall make available to certain financial
market publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions LLC on a monthly basis, all CMSA reports and any other reports
required to be delivered by the Paying Agent pursuant to Article IV hereof. If
any such information is provided on or before September 21, 2006, the Paying
Agent shall make the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Master Servicers,
the Paying Agent and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent.
The Paying Agent hereby represents and warrants to the Depositor,
the Master Servicers, the Trustee and the Special Servicer and for the benefit
of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association duly
organized under the laws of the United States, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent;
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Paying Agent of its obligations under this Agreement,
and which, if not obtained would not have a materially adverse effect on
the ability of the Paying Agent to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Master Servicers, the Special Servicer and the Trustee (other
than the obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the final payment (or related Advance) or
other liquidation of the last Mortgage Loan or REO Property subject thereto or
(ii) the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, any Master Servicer or the Holders of
the Class LR Certificates, in that order of priority, of all the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund at
a price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of the Trust Fund's portion of each REO Property, if any,
included in the Trust Fund (such Appraisals in clause (a)(2) to be conducted by
an Independent MAI-designated appraiser selected and mutually agreed upon by the
applicable Master Servicer and the Trustee, and approved by more than 50% of the
Voting Rights of the Classes of Certificates then outstanding (other than the
Controlling Class unless the Controlling Class is the only Class of Certificates
then outstanding)) (which approval shall be deemed given unless more than 50% of
such Certificateholders object within 20 days of receipt of notice thereof) and
(3) the reasonable out-of-pocket expenses of each Master Servicer with respect
to such termination, unless a Master Servicer is the purchaser of such Mortgage
Loans, minus (b) solely in the case where a Master Servicer is effecting such
purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to such Master Servicer in respect of such Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to such Master Servicer in connection with such purchase) and (iii)
exchange by the Sole Certificateholder pursuant to the terms of the immediately
succeeding paragraph, the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. James's, living on the date hereof.
Following the date on which the Offered Certificates retire, with
the consent of the Master Servicers in their sole discretion, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and the Trust Fund's portion of each REO Property remaining in the Trust
Fund as contemplated by clause (iii) of the first paragraph of this Section 9.01
by giving written notice to all the parties hereto no later than 60 days prior
to the anticipated date of exchange. In the event that the Sole
Certificateholder elects to exchange all of its Certificates (other than the
Class S and the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Accounts an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicers, the Special Servicer, the Trustee and the Paying Agent hereunder
through the date of the liquidation of the Trust Fund that may be withdrawn from
the Certificate Account, or an escrow account acceptable to the respective
parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the
Distribution Account pursuant to Section 3.05(a), but only to the extent that
such amounts are not already on deposit in the Certificate Account. In addition,
each Master Servicer shall transfer all amounts required to be transferred to
the Lower-Tier Distribution Account on the P&I Advance Date related to such
Distribution Date in which the final distribution on the Certificates is to
occur from the Certificate Account pursuant to the first paragraph of Section
3.04(b) (provided, however, that if the Loan Pair is secured by REO Property,
the Trust Fund's portion of the REO Property which is being purchased pursuant
to the foregoing, the portion of the above-described purchase price allocable to
such Trust Fund's portion of REO Property shall initially be deposited into the
related REO Account). Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Class S and
the Residual Certificates) on the final Distribution Date, the Trustee shall,
upon receipt of a Request for Release from each Master Servicer, release or
cause to be released to the Sole Certificateholder or any designee thereof, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund, and the Trust Fund shall
be liquidated in accordance with Section 9.02. Such transfers shall be subject
to any rights of any Sub-Servicers to service or perform select servicing
functions with respect to the Mortgage Loans. Solely for federal income tax
purposes, the Sole Certificateholder shall be deemed to have purchased the
assets of the Lower-Tier REMIC for an amount equal to the remaining Certificate
Balance of its Certificates (other than the Class S, Class X and the Residual
Certificates), plus accrued, unpaid interest with respect thereto, and the
Paying Agent shall credit such amounts against amounts distributable in respect
of such Certificates and Related Uncertificated Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicers, the Special Servicer, the Trustee, the Paying
Agent and the applicable Companion Paying Agent shall terminate with respect to
any Companion Loan to the extent (i) its related AB Mortgage Loan has been paid
in full or is no longer part of the Trust Fund and (ii) no amounts payable by
the related Companion Holder to or for the benefit of the Trust or any party
hereto in accordance with the related Intercreditor Agreement remain due and
owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, each Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee, the Paying Agent and the
other parties hereto no later than 60 days prior to the anticipated date of
purchase; provided, however, that each Master Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR Certificates
may so elect to purchase all of the Mortgage Loans and the Trust Fund's portion
of each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and the Trust Fund's portion of any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that any
Master Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates purchases all of the Mortgage Loans and
the Trust Fund's portion of each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, such Master Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, shall deposit in the Lower-Tier Distribution
Account not later than the P&I Advance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Certificate Account). In addition, the applicable Master Servicer shall
transfer to the Lower-Tier Distribution Account all amounts required to be
transferred thereto on such P&I Advance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution and, without duplication, pay to the Swap Counterparty any
Class A-3FL Net Swap Payment as required by Section 3.32(c). Upon confirmation
that such final deposits and payments have been made, the Trustee shall release
or cause to be released to the applicable Master Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by such Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then each Master Servicer, and then the Holders of
the Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to the Certificateholders, the Swap
Counterparty and each Rating Agency and the One & Two Prudential Plaza A2
Noteholder and, if not previously notified pursuant to this Section 9.01, to the
other parties hereto mailed (a) in the event such notice is given in connection
with the purchase of all of the Mortgage Loans and each REO Property remaining
in the Trust Fund, not earlier than the 15th day and not later than the 25th day
of the month next preceding the month of the final distribution on the
Certificates, or (b) otherwise during the month of such final distribution on or
before the P&I Advance Determination Date in such month, in each case specifying
(i) the Distribution Date upon which the Trust Fund will terminate and final
payment of the Certificates will be made, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the offices of the Certificate Registrar or such other
location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account (and with respect to any amounts payable to
the Class A-3FL Regular Interest, from the Upper-Tier Distribution Account to
the Floating Rate Account), in each case pursuant to Section 3.04(b), and upon
presentation and surrender of the Certificates by the Certificateholders on the
final Distribution Date, the Paying Agent shall distribute to each
Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account (or, in the case of the Class
A-3FL Certificates, amounts then on deposit in the Floating Rate Account after
payment of any Class A-3FL Net Swap Payment to the Swap Counterparty, as
specified in Section 4.01(k)) that are allocable to payments on the Class of
Certificates so presented and surrendered and to the Holders of the Class S
Certificates any amounts remaining on deposit in the Excess Interest
Distribution Account. Amounts transferred from the Lower-Tier Distribution
Account to the Upper-Tier Distribution Account as of the final Distribution Date
(exclusive of any portion of such amounts payable or reimbursable to any Person
pursuant to clause (ii) of Section 3.05(e)) shall be allocated for these
purposes, in the amounts and in accordance with the priority set forth in
Sections 4.01(b), 4.01(d) and 4.01(e) and shall be distributed in termination
and liquidation of the Uncertificated Lower-Tier Interests and the Class LR
Certificates in accordance with Sections 4.01(b), 4.01(d) and 4.01(e). Any funds
not distributed on such Distribution Date shall be set aside and held uninvested
in trust for the benefit of the Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed of
in accordance with this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements. (a) In the event
any Master Servicer, the Special Servicer, the Holders of the Controlling Class
or the Holders of the Class LR Certificates purchases all of the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the applicable Master Servicer, the Special Servicer, the Holders
of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Paying Agent shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class LR Certificates (in the case of the Lower-Tier REMIC) and the Class
R Certificates (in the case of the Upper-Tier REMIC) all cash on hand
(other than cash retained to meet claims), and the Trust Fund and each of
the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that
time.
(b) In the event the Trust Fund is to be terminated while the Swap
Contract is still in effect, the Paying Agent shall promptly notify the Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of the Swap Contract will be reduced to zero on
such date. Based on the date of termination, the Paying Agent shall calculate
the Class A-3FL Net Swap Payment, if any, as specified in Section 3.32, and
prior to any final distributions to the Holders of the Class A-3FL Certificates,
pursuant to Section 9.01, shall pay such Class A-3FL Net Swap Payment, if any,
to the Swap Counterparty. In the event that any fees (including termination
fees) are payable to the Swap Counterparty in connection with such termination,
such fees will be payable to the Swap Counterparty solely from amounts remaining
in the Floating Rate Account after all distributions to the Class A-3FL
Certificates are made pursuant to Section 9.01.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Paying Agent shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates (other than the
Class A-3FL Certificates) and the Class A-3FL Regular Interest shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicers, the Paying Agent or the Trustee shall permit the creation
of any "interests" (within the meaning of Section 860G of the Code) in the
Lower-Tier REMIC or the Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the (i) Class R and (ii) Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the (i) Upper-Tier REMIC and
(ii) the Lower-Tier REMIC, respectively. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the (i) Class R and (ii)
Class LR Certificates hereby agrees to irrevocably appoint the Paying Agent as
their agent to perform all of the duties of the "tax matters person" for the (i)
Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Paying Agent without any right of reimbursement therefor. The Paying Agent
agrees to indemnify and hold harmless the Trustee with respect to any tax or
liability arising from the Trustee's signing of Tax Returns that contain errors
or omissions, if such errors or omissions are caused by the negligence, bad
faith or willful misconduct of the Paying Agent.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions and the Trustee shall
assist the Paying Agent to the extent reasonably requested by the Paying Agent
to do so. Neither the Master Servicers nor the Special Servicer shall knowingly
or intentionally take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
or (ii) result in the imposition of a tax upon the Lower-Tier REMIC or the
Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but
not including the tax on "net income from foreclosure property") (either such
event, and if the One & Two Prudential Plaza Whole Loan is involved, any similar
event with respect to a related securitization trust holding the One & Two
Prudential Plaza A2 Note, in each case, an "Adverse REMIC Event") unless the
Paying Agent receives an Opinion of Counsel (at the expense of the party seeking
to take such action or, if such party fails to pay such expense, and the Paying
Agent determines that taking such action is in the best interest of the Trust
Fund and the Certificateholders, at the expense of the Trust Fund, but in no
event at the expense of the Paying Agent or the Trustee) to the effect that the
contemplated action will not, with respect to the Trust Fund, the Lower-Tier
REMIC or the Upper-Tier REMIC created hereunder, endanger such status or, unless
the Paying Agent determines in its sole discretion to indemnify the Trust Fund
against such tax, result in the imposition of such a tax (not including a tax on
"net income from foreclosure property"). The Trustee shall not take or fail to
take any action (whether or not authorized hereunder) as to which the Paying
Agent has advised it in writing that it has received an Opinion of Counsel to
the effect that an Adverse REMIC Event could occur with respect to such action
or inaction. In addition, prior to taking any action with respect to the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or any of their respective
assets, or causing the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC
to take any action, which is not expressly permitted under the terms of this
Agreement, the Trustee will consult with the Paying Agent or its designee in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier
REMIC and the Trustee shall not take any action or cause the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC to take any such action as to which the
Paying Agent has determined that an Adverse REMIC Event could occur (and if the
One & Two Prudential Plaza Whole Loan is involved, any similar event with
respect to a related securitization trust holding the One & Two Prudential Plaza
A2 Note). The Paying Agent may consult with counsel to make such written advice,
and the cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the expense of the
Paying Agent or the Trustee. At all times as may be required by the Code, the
Paying Agent will to the extent within its control and the scope of its duties
more specifically set forth herein, maintain substantially all of the assets of
each of the Lower-Tier REMIC and the Upper-Tier REMIC as "qualified mortgages"
as defined in Section 860G(a)(3) of the Code and "permitted investments" as
defined in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Paying Agent in writing), and shall remit to the applicable Master Servicer
such reserved amounts as such Master Servicer shall request in order to pay such
taxes. Except as provided in the preceding sentence, the applicable Master
Servicer shall withdraw from the applicable Certificate Account sufficient funds
to pay or provide for the payment of, and to actually pay, such tax as is
estimated to be legally owed by the Lower-Tier REMIC or the Upper-Tier REMIC
(but such authorization shall not prevent the Paying Agent from contesting, at
the expense of the Trust Fund (other than as a consequence of a breach of its
obligations under this Agreement), any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The Paying Agent is hereby authorized to and shall segregate,
into a separate non-interest bearing account, the net income from any
"prohibited transaction" under Section 860F(a) of the Code or the amount of any
taxable contribution to the Lower-Tier REMIC or the Upper-Tier REMIC after the
Startup Day that is subject to tax under Section 860G(d) of the Code and use
such income or amount, to the extent necessary, to pay such prohibited
transactions tax. To the extent that any such tax (other than any such tax paid
in respect of "net income from foreclosure property") is paid to the Internal
Revenue Service or applicable state or local tax authorities, the Paying Agent
shall retain an equal amount from future amounts otherwise distributable to the
Holders of Residual Certificates (as applicable) and shall distribute such
retained amounts, (x) in the case of the Uncertificated Lower-Tier REMIC
Interests, to the Upper-Tier REMIC to the extent they are fully reimbursed for
any Collateral Support Deficit arising therefrom and then to the Holders of the
Class LR Certificates in the manner specified in Section 4.01(b) and (y) in the
case of the Upper-Tier REMIC, to the Holders of Class A (other than the Class
A-3FL Certificates), Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class NR and Class X Certificates and the Class A-3FL Regular Interest,
as applicable, in the manner specified in Section 4.01(a), to the extent they
are fully reimbursed for any Collateral Support Deficit, arising therefrom and
then to the Holders of the Class R Certificates. None of the Trustee, the Paying
Agent, the Master Servicers or the Special Servicer shall be responsible for any
taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC except to the
extent such taxes arise as a consequence of a breach of their respective
obligations under this Agreement which breach constitutes willful misfeasance,
bad faith, or negligence by such party.
(h) The Paying Agent shall, for federal income tax purposes,
maintain or cause to be maintained books and records with respect to each of the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the Paying Agent and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of the Class A-3FL Regular Interest and
each Class of Certificates (other than the Class A-3FL Certificates)
representing a "regular interest" in the Upper-Tier REMIC and by which the
Lower-Tier Principal Amount of each Class of Uncertificated Lower-Tier Interests
representing a "regular interest" in the Lower-Tier REMIC would be reduced to
zero is the Rated Final Distribution Date.
(l) None of the Trustee, the Paying Agent, the Master Servicers or
the Special Servicer, as applicable, shall sell, dispose of or substitute for
any of the Mortgage Loans (except in connection with (i) the default, imminent
default or foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by foreclosure or deed in
lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of the Trust Fund pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement) or
acquire any assets for the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC or sell or dispose of any investments in the Certificate Account or the
REO Account for gain unless it has received an Opinion of Counsel that such
sale, disposition or substitution will not (a) affect adversely the status of
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Trustee, the Paying Agent, each Master Servicer or the Special Servicer, as
applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC to be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(b) The Paying Agent may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Paying Agent shall not be relieved of any of its duties or obligations under
this Article X by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicers and Special Servicer to
Cooperate with Paying Agent. (a) The Depositor shall provide or cause to be
provided to the Paying Agent within ten (10) days after the Depositor receives a
request from the Paying Agent, all information or data that the Paying Agent
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumptions and projected cash flow of the Certificates.
(b) Each Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Paying Agent in order to enable it to perform its
duties hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Paying
Agent may appoint at the Paying Agent's expense, one or more REMIC
Administrators, which shall be authorized to act on behalf of the Paying Agent
in performing the functions set forth in Section 10.01 herein. The Paying Agent
shall cause any such REMIC Administrator to execute and deliver to the Paying
Agent an instrument in which such REMIC Administrator shall agree to act in such
capacity, with the obligations and responsibilities herein. The appointment of a
REMIC Administrator shall not relieve the Paying Agent from any of its
obligations hereunder, and the Paying Agent shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Paying Agent and must be organized and doing business
under the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Paying Agent hereby agrees to act in such capacity in accordance with the
terms hereof. If LaSalle Bank National Association is removed as Paying Agent,
then LaSalle Bank National Association shall be terminated as REMIC
Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicers, the Special
Servicer and the Depositor. The Paying Agent may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master Servicers, the Certificate Registrar and
the Depositor. Upon receiving a notice of resignation or upon such a
termination, or in case at any time any REMIC Administrator shall cease to be
eligible in accordance with the provisions of this Section 10.04, the Paying
Agent may appoint a successor REMIC Administrator, in which case the Paying
Agent shall given written notice of such appointment to the Master Servicers and
the Depositor and shall mail notice of such appointment to all
Certificateholders; provided, however, that no successor REMIC Administrator
shall be appointed unless eligible under the provisions of this Section 10.04.
Any successor REMIC Administrator upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as REMIC
Administrator. No REMIC Administrator shall have responsibility or liability for
any action taken by it as such at the direction of the Paying Agent.
[End of Article X]
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. Neither the Depositor
nor the Master Servicers shall exercise their rights to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder; provided that in all instances the
reports and certificates contemplated by Sections 11.09, 11.10 and 11.11 shall
be provided to the Rating Agencies as required thereunder; provided, however,
that the Paying Agent shall be deemed to have satisfied any delivery
requirements to the Rating Agencies thereunder by making such reports and
certificates available on its internet website. The parties hereto acknowledge
that interpretations of the requirements of Regulation AB may change over time,
due to interpretive guidance provided by the Commission or its staff, and agree
to comply with requests made by the Depositor or the applicable Master Servicer
in good faith for delivery of information under these provisions on the basis of
evolving interpretations of the requirements of Regulation AB. In connection
with the X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7, each of the
Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall
cooperate fully with the Depositor and the Paying Agent, as the case may be, to
deliver or make available to the Depositor or the Paying Agent (including any of
their assignees or designees), any and all statements, reports, certifications,
records and any other information (in its possession or reasonably attainable)
necessary in the good faith determination of the Depositor or the Paying Agent,
as applicable, to permit the Depositor to comply with the provisions of
Regulation AB, together with such disclosures relating to the applicable Master
Servicer, the Special Servicer, the Trustee and the Paying Agent, as applicable,
and any Sub-Servicer, or the servicing of the Mortgage Loans, reasonably
believed by the Depositor or the Paying Agent, as applicable, in good faith to
be necessary in order to effect such compliance. Each party to this Agreement
shall have a reasonable period of time to comply with any written request made
under this Section 11.01, but in any event, shall, upon reasonable advance
written request, provide information in sufficient time to allow the Depositor
or the Paying Agent, as applicable, to satisfy any related filing requirements.
For purposes of this Article XI, to the extent any party has an obligation to
exercise commercially reasonable efforts to cause a third party to perform, such
party hereunder shall not be required to bring any legal action against such
third party in connection with such obligation.
Section 11.02 Succession; Subcontractors. (a) For so long as the
Trust is subject to the reporting requirements of the Exchange Act (in addition
to any requirements contained in Section 11.07), in connection with the
succession to any Reporting Servicer by any Person (i) into which any Reporting
Servicer may be merged or consolidated, or (ii) which may be appointed as a
successor to any Master Servicer and Special Servicer or any Subservicer (other
than a succession or appointment pursuant to Section 7.01(b) for which notice
may be delivered as soon as reasonably practicable), any Reporting Servicer
shall provide to the Depositor and the Paying Agent, at least 15 calendar days
prior to the effective date of such succession or appointment, (x) written
notice to the Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
relating to such successor reasonably requested by the Depositor so that the
Depositor may comply with its reporting obligation under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act); provided, however that if
disclosing such information prior to such effective date would violate any
applicable law or confidentiality agreement, the Reporting Servicer, as
applicable, shall submit such disclosure to the Depositor and the Paying Agent
no later than the first Business Day after the effective date of such succession
or appointment.
(b) For so long as the Trust is subject to the reporting
requirements of the Exchange Act (in addition to any requirements contained in
Section 11.07), each of the Master Servicers, the Special Servicer, the
Sub-Servicer, the Trustee and the Paying Agent (each of the Master Servicers,
the Special Servicer, the Trustee and the Paying Agent and each Sub-Servicer,
for purposes of this paragraph, a "Servicer") is permitted to utilize one or
more Subcontractors to perform certain of its obligations hereunder. For so long
as the Trust is subject to the reporting requirements of the Exchange Act (in
addition to any requirements contained in Section 11.07), such Servicer shall
promptly upon request provide to the Depositor a written description (in form
and substance satisfactory to the Depositor) of the role and function of each
Subcontractor that is a Servicing Function Participant utilized by such
Servicer, specifying the identity of each Subcontractor that is a Servicing
Function Participant, and the elements of the Servicing Criteria that will be
addressed in assessments of compliance provided by such Subcontractor. As a
condition to the utilization by such Servicer of any Subcontractor determined to
be a Servicing Function Participant, such Servicer shall (i) with respect to any
such Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use
commercially reasonable efforts to cause, and (ii) with respect to any other
such subcontractor with which it has entered into a servicing relationship,
cause such Subcontractor used by such Servicer for the benefit of the Depositor,
the Paying Agent and the Trustee to comply with the provisions of Section 11.10
and Section 11.11 of this Agreement to the same extent as if such Subcontractor
were such Servicer. With respect to any Servicing Function Participant engaged
by such Servicer that is an Initial Sub-Servicer, such Servicer shall be
responsible for using commercially reasonable efforts to obtain, and with
respect to each other Servicing Function Participant engaged by such Servicer,
obtain from each such Servicing Function Participant and delivering to the
applicable Persons any assessment of compliance report and related accountant's
attestation required to be delivered by such Subcontractor under Section 11.10
and Section 11.11, in each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, such Servicer shall be responsible for determining whether such
Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation AB
and whether any such Subcontractor meets the criteria in Item 1108(a)(2)(i),
(ii) or (iii) of Regulation AB. If a Servicer determines, pursuant to the
preceding sentence, that such Subcontractor is a "servicer" within the meaning
of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii)
or (iii) of Regulation AB, then such Subcontractor shall be deemed to be a
Sub-Servicer for purposes of this Agreement, the engagement of such
Sub-Servicer, other than an Initial Sub-Servicer, shall not be effective unless
and until notice is given to the Depositor and the Paying Agent of any such
Sub-Servicer and Subservicing Agreement. Other than with respect to the Initial
Sub-Servicer, no Subservicing Agreement shall be effective until 15 days after
such written notice is received by the Depositor and the Paying Agent (or such
shorter period as is agreed to by the Depositor). Such notice shall contain all
information reasonably necessary to enable the Paying Agent to accurately and
timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange Act
(if such reports under the Exchange Act are required to be filed under the
Exchange Act).
(d) As a condition to the succession to the Trustee, Paying Agent or
Special Servicer under this Agreement by any Person (i) into which such party
may be merged or consolidated, or (ii) which may be appointed as a successor to
any such party, that party shall notify the Depositor and each Rating Agency, at
least 15 calendar days prior to the effective date of such succession or
appointment (or if such prior notice would violate applicable law or any
applicable confidentiality agreement, no later than one (1) Business Day after
such effective date of succession) and shall furnish to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably necessary for the Paying Agent to accurately and timely
report, pursuant to Section 11.07, the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 11.03 Filing Obligations. (a) The Reporting Servicers shall
reasonably cooperate with the Depositor in connection with the satisfaction of
the Trust's reporting requirements under the Exchange Act. Pursuant to Sections
11.04, 11.05 and 11.06 below, the Paying Agent shall prepare for execution by
the Depositor any Forms 8-K, 10-D and 10-K required by the Exchange Act, in
order to permit the timely filing thereof, and the Paying Agent shall file (via
the Commission's Electronic Data Gathering and Retrieval System ("Xxxxx")) such
Forms executed by the Depositor.
(b) In the event that the Paying Agent is unable to timely file with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement, the Paying Agent will promptly notify (which notice
may be sent by fax or by e-mail notwithstanding the provisions of Section 12.05
and shall include identity of those Reporting Servicers who either did not
deliver such information or delivered such information to it after the delivery
deadlines set forth in this Agreement) the Depositor and each Reporting Servicer
that failed to make such disclosure. In the case of Forms 10-D and 10-K, the
Depositor, the Master Servicers, the Special Servicer, the Paying Agent and
Trustee will thereupon cooperate to prepare and file a Form 12b-25 and a Form
10-D/A or Form 10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Paying Agent will, upon receipt of all
required Form 8-K Disclosure Information and upon the approval and direction of
the Depositor, include such disclosure information on the next succeeding Form
10-D to be filed for the Trust. In the event that any previously filed Form 8-K,
Form 10-D or Form 10-K needs to be amended, the Paying Agent will notify the
Depositor, and such other parties as needed and the parties hereto will
cooperate with the Paying Agent to prepare any necessary Form 8-K/A, Form 10-D/A
or Form 10-K/A ; provided however that the Paying Agent will not be required to
notify the Depositor or any other party hereto in advance of amending Form 10-D
where such amendment is solely for the purpose of re-stating the Statement to
Certificateholders. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form
10-D or Form 10-K shall be signed by an authorized officer of the Depositor or a
senior officer of the Depositor in charge of securitization, as applicable. The
parties to this Agreement acknowledge that the performance by the Paying Agent
of its duties under this Section 11.03 related to the timely preparation,
arrangement for execution and filing of Form 15, a Form 12b-25 or any amendment
to Form 8-K, Form 10-D or Form 10-K is contingent upon the parties observing all
applicable deadlines in the performance of their duties under Sections 11.03,
11.04, 11.05, 11.06, 11.07, 11.08, 11.09, 11.10 and 11.11. The Paying Agent
shall have no liability for any loss, expense, damage, claim arising out of or
with respect to any failure to properly prepare, arrange for execution and/or
timely file any such Form 15, Form 12b-25 or any amendments to Form 8-K, Form
10-D or Form 10-K, where such failure results from the Paying Agent's inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Paying Agent shall prepare and file on behalf of the Trust any Form 10-D
required by the Exchange Act, in form and substance as required by the Exchange
Act. The Paying Agent shall file each Form 10-D with a copy of the related
Statement to Certificateholders attached thereto. Any disclosure in addition to
the Statement to Certificateholders that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall, pursuant to the following paragraph
be reported by the parties set forth on Exhibit X to the Depositor and the
Paying Agent and approved by the Depositor, and the Paying Agent will have no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure (other than Additional Form 10-D Disclosure
required to be reported by it as set forth herein), absent such reporting,
direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Exhibit X hereto, within 5 calendar days after
the related Distribution Date, (i) the parties listed on Exhibit X hereto shall
be required to provide to the Paying Agent and the Depositor, to the extent a
Regulation AB Servicing Officer or Responsible Officer, as the case may be,
thereof has actual knowledge, in XXXXX-compatible format (to the extent
available to such party in such format), or in such other format as otherwise
agreed upon by the Paying Agent, the Depositor and such providing parties, the
form and substance of the Additional Form 10-D Disclosure described on Exhibit X
applicable to such party, (ii) the parties listed on Exhibit X hereto shall
include with such Additional Form 10-D Disclosure, an Additional Disclosure
Notification in the form attached hereto as Exhibit AA and (iii) the Depositor
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Paying Agent
has no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit X of their duties under this paragraph or proactively
solicit or procure from such parties any Additional Form 10-D Disclosure
information. The Depositor will be responsible for any reasonable fees assessed
and expenses incurred by the Paying Agent in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
(b) After preparing the Form 10-D, the Paying Agent shall forward
electronically a copy of the Form 10-D to the Depositor for review no later than
10 calendar days after the related Distribution Date. Within two Business Days
after receipt of such copy, but no later than the 2 Business Days prior to the
15th calendar day after the Distribution Date, the Depositor shall notify the
Paying Agent in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D and, a duly authorized officer of the Depositor
shall sign the Form 10-D and return an electronic or fax copy of such signed
Form 10-D (with an original executed hard copy to follow by overnight mail) to
the Paying Agent. Alternatively, if the Paying Agent agrees, the Depositor may
deliver to the Paying Agent manually signed copies of a power of attorney
meeting the requirements of Item 601(b)(24) of Regulation S-K under the
Securities Act, and certified copies of a resolution of the Depositor's board of
directors authorizing such power of attorney, each to be filed with each Form
10-D, in which case the Paying Agent shall sign such Forms 10-D as attorney in
fact for the Depositor. In the event that the Paying Agent signs the Forms 10-D
as attorney in fact for the Depositor pursuant to such powers of attorney, the
Paying Agent shall deliver a draft of each such Form 10-D to the Depositor no
later than 2 Business Days prior to the filing deadline applicable to such
report. If a Form 10-D cannot be filed on time or if a previously filed Form
10-D needs to be amended, the Paying Agent will follow the procedures set forth
in Section 11.03(b). Promptly after filing with the Commission, the Paying Agent
will make available on its internet website a final executed copy of each Form
10-D prepared and filed by the Paying Agent. The signing party at the Depositor
can be contacted at Xxxxxx Xxxxx, Managing Director and Associate General
Counsel, JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice
President, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000.
The parties to this Agreement acknowledge that the performance by the Paying
Agent of its duties under this Section 11.04(b) related to the timely
preparation, arrangement for execution and filing of Form 10-D is contingent
upon such parties observing all applicable deadlines in the performance of their
duties under this Section 11.04(b). The Paying Agent shall have no liability for
any loss, expense, damage, or claim arising out of or with respect to any
failure to properly prepare, arrange for execution and/or timely file such Form
10-D, where such failure results from the Paying Agent's inability or failure to
receive, on a timely basis, any information from any party to this Agreement
needed to prepare, arrange for execution or file such Form 10-D, not resulting
from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than the fifth calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D if the
answer to the questions should be "no." The Paying Agent shall be entitled to
rely on such representations in preparing, executing and/or filing any Form
10-D.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust (it being understood that the fiscal year for the
Trust ends on December 31 of each year) or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2007, the
Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in form
and substance as required by the Exchange Act. Each such Form 10-K shall include
the following items, in each case to the extent they have been delivered to the
Paying Agent within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for each Master Servicer, the
Special Servicer and each Additional Servicer engaged by each Master
Servicer or the Special Servicer, as described under Section 11.09;
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for the Trustee, each Master Servicer, the Special
Servicer, the Paying Agent, each Additional Servicer engaged by any Master
Servicer and each Servicing Function Participant engaged by any Master
Servicer, the Special Servicer, the Paying Agent or Trustee, as described
under Section 11.10; and
(B) if any such report on assessment of compliance with
servicing criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not
included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, each Master Servicer, the Special Servicer, the Paying
Agent each Additional Servicer engaged by any Master Servicer, the Special
Servicer and each Servicing Function Participant engaged by any Master
Servicer, the Special Servicer, the Paying Agent or the Trustee, as
described under Section 11.11; and
(B) if any registered public accounting firm attestation
report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why
such report is not included; and
(iv) a certification in the form attached hereto as Exhibit Q, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the following paragraph be reported by the parties set forth
on Exhibit Z to the Depositor and the Paying Agent and approved by the Depositor
and the Paying Agent will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure (other than such
Additional Form 10-K Disclosure which is to be reported by it as set forth
herein), absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 15, commencing in March 2007 (i) the
parties listed on Exhibit Y hereto shall be required to provide to the Paying
Agent and the Depositor to the extent a Regulation AB Servicing Officer or
Responsible Officer, as the case may be, thereof has actual knowledge, in
XXXXX-compatible format (to the extent available to such party in such format),
or in such other format as otherwise agreed upon by the Paying Agent and the
Depositor and such providing party, the form and substance of the Additional
Form 10-K Disclosure described on Exhibit Y applicable to such party, (ii) the
parties listed on Exhibit Y hereto shall include with such Additional Form 10-K
Disclosure, an Additional Disclosure Notification in the form attached hereto as
Exhibit AA, and (iii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit Y of their duties
under this paragraph or proactively solicit or procure from such parties any
Additional Form 10-K Disclosure information. The Depositor will be responsible
for any reasonable fees assessed and expenses incurred by the Trustee and the
Paying Agent in connection with including any Additional Form 10-K Disclosure on
Form 10-K pursuant to this paragraph.
(b) After preparing the Form 10-K, the Paying Agent shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
6 Business Days prior to the 10-K Filing Deadline. Within three Business Days
after receipt of such copy, but no later than March 25th, the Depositor shall
notify the Paying Agent in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-K and the senior officer in charge of
securitization for the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Paying Agent at such time. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Paying Agent shall follow the procedures set forth in Section
11.03(b). Promptly after filing with the Commission, the Paying Agent will make
available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Paying Agent. The signing party at the Depositor can
be contacted at Xxxxxx Xxxxx, Managing Director and Associate General Counsel,
JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice President,
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000. The parties to
this Agreement acknowledge that the performance by the Paying Agent of its
duties under this Section 11.05 related to the timely preparation, arrangement
for execution and filing of Form 10-K is contingent upon the parties to this
Agreement (and any Additional Servicer or Servicing Function Participant engaged
or utilized, as applicable, by any such parties) observing all applicable
deadlines in the performance of their duties under this Section 11.05. The
Paying Agent shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-K, where such failure results from the
Paying Agent's inability or failure or receive, on a timely basis, any
information from the parties to this Agreement (or any Sub-Servicer or Servicing
Function Participant engaged by any such parties) needed to prepare, arrange for
execution or file such Form 10-K on a timely basis, not resulting from its own
negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than the 15th calendar day of March in any year in
which the Trust is required to file a Form 10-K if the answer to the questions
should be "no." The Paying Agent shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-K.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit Q
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff). Each Master Servicer, the
Special Servicer, the Trustee and the Paying Agent shall (i) with respect to
each Initial Sub-Servicer engaged by such Master Servicer or the Special
Servicer, as applicable, that is a Servicing Function Participant use
commercially reasonable efforts to cause and (ii) with respect to each other
Servicing Function Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans, cause to, provide to the Person
who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") by March 15
of each year in which the Trust is subject to the reporting requirements of the
Exchange Act, a certification in the form attached hereto as Exhibit R-1, R-2
and R-3 (each, a "Performance Certification"), as applicable, on which the
Certifying Person, the entity for which the Certifying Person acts as an
officer, and such entity's officers, directors and Affiliates (collectively with
the Certifying Person, "Certification Parties") can reasonably rely. In
addition, in the event that any Companion Loan is deposited into a commercial
mortgage securitization (an "Other Securitization"), each Reporting Servicer
shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with
respect to such Other Securitization a Performance Certification, in form and
substance similar to applicable Performance Certification (which shall address
the matters contained in the applicable Performance Certification, but solely
with respect to the related Companion Loan) on which such Person, the entity for
which the Person acts as an officer, and such entity's officers, directors and
Affiliates can reasonably rely. The senior officer in charge of securitization
for the Depositor shall serve as the Certifying Person on behalf of the Trust.
In addition, each Reporting Servicer shall execute a reasonable reliance
certificate (or may include an equivalent of such reliance certificate in its
Xxxxxxxx-Xxxxx Certification) to enable the Certification Parties to rely upon
each (i) annual compliance statement provided pursuant to Section 11.09, (ii)
annual report on assessment of compliance with servicing criteria provided
pursuant to Section 11.10 and (iii) accountant's report provided pursuant to
Section 11.11, and shall include a certification that each such annual
compliance statement or report discloses any deficiencies or defaults described
to the registered public accountants of such Reporting Servicer to enable such
accountants to render the certificates provided for in Section 11.11. In the
event any Reporting Servicer is terminated or resigns pursuant to the terms of
this Agreement, or any applicable sub-servicing agreement or primary servicing
agreement, as the case may be, such Reporting Servicer shall provide a
certification to the Certifying Person pursuant to this Section 11.06 with
respect to the period of time it was subject to this Agreement or the applicable
sub-servicing or primary servicing agreement, as the case may be.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor and to the extent it
receives the Form 8-K Disclosure Information described below), the Paying Agent
shall prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K (other than the initial Form 8-K) ("Form 8-K Disclosure Information")
shall, pursuant to the following paragraph be reported by the parties set forth
on Exhibit Z to the Depositor and the Paying Agent and approved by the
Depositor, and the Paying Agent will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information or any
Form 8-K (other than such Form 8-K Disclosure Information which is to be
reported by it as set forth herein), absent such reporting, direction and
approval.
For so long as the Trust is subject to the Exchange Act reporting
requirements, no later than noon (New York time) on the 2nd Business Day after
the occurrence of a Reportable Event (i) the parties set forth on Exhibit Z
hereto shall be required to provide to the Depositor and the Paying Agent, to
the extent a Regulation AB Servicing Officer or Responsible Officer, as the case
may be, thereof has actual knowledge, in XXXXX-compatible format (to the extent
available to such party in such format) or in such other format agreed upon by
the Depositor, the Paying Agent and such providing parties the Form 8-K
Disclosure Information described in Exhibit Z applicable to such party, (ii) the
parties listed on Exhibit Z hereto shall include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached hereto
as Exhibit AA and (iii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit AA of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees assessed and expenses incurred by the Paying Agent in connection
with including any Form 8 K Disclosure Information on Form 8 K pursuant to this
paragraph.
After preparing the Form 8-K, the Paying Agent shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
noon (New York City time) on the 3rd Business Day after the Reportable Event,
but in no event earlier than 24 hours after having received the Form 8-K
Disclosure Information pursuant to the immediately preceding paragraph.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Paying Agent in
writing (which may be furnished electronically) of any changes to or approval of
such Form 8-K. No later than noon (New York City time) on the 4th Business Day
after the Reportable Event, a duly authorized officer of the Depositor shall
sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K
(with an original executed hard copy to follow by overnight mail) to the Paying
Agent. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K
needs to be amended, the Paying Agent will follow the procedures set forth in
Section 11.03(b). Promptly after filing with the Commission, the Paying Agent
will, make available on its internet website a final executed copy of each Form
8-K prepared and filed by the Paying Agent. The signing party at the Depositor
can be contacted at Xxxxxx Xxxxx, Managing Director and Associate General
Counsel, JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice
President, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000.
The parties to this Agreement acknowledge that the performance by the Paying
Agent of its duties under this Section 11.07 related to the timely preparation,
arrangement for execution and filing of Form 8-K is contingent upon such parties
observing all applicable deadlines in the performance of their duties under this
Section 11.07. The Paying Agent shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare,
arrange for execution and/or timely file such Form 8-K, where such failure
results from the Paying Agent's inability or failure to receive, on a timely
basis, any information from the parties to this Agreement needed to prepare,
arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
The Master Servicer, the Special Servicer, the Paying Agent and the
Trustee shall promptly notify (and the Master Servicer and the Special Servicer
shall (i) with respect to each Initial Sub-Servicer that is an Additional
Servicer engaged by such Master Servicer, Special Servicer, Trustee or Paying
Agent use commercially reasonable efforts to cause and (ii) with respect to each
other Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans (other than a party to this
Agreement) cause to promptly notify) the Depositor and the Paying Agent pursuant
to the 2nd preceding paragraph, but in no event later than noon (New York City
time) on the 2nd Business Day after its occurrence, of any Reportable Event
described on Exhibit Z applicable to such party to the extent a Regulation AB
Servicing Officer or Responsible Officer, as the case may be, thereof has actual
knowledge thereof, in XXXXX-compatible format (to the extent available to such
party in such format).
Section 11.08 Form 15 Filing. On or prior to January 30 of the first
year in which the Paying Agent is able to do so under applicable law, the Paying
Agent shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If at the end of any fiscal year for the Trust during which occurred the
filing of a Form 15 Suspension Notification, if the number of Certificateholders
of record exceeds the number set forth in Section 15(d) of the Exchange Act or
the regulations promulgated pursuant thereto which would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Paying Agent shall recommence preparing and filing reports on Forms 10-K, 10-D
and 8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07;
provided, that if the Paying Agent re commences the preparing and filing of
Exchange Act reports, it may, as soon as permitted by the Exchange Act, file
another Form 15 Suspension Notification.
Section 11.09 Annual Compliance Statements. Each Master Servicer,
the Special Servicer, the Trustee and the Paying Agent (each, a "Certifying
Servicer") shall deliver to (and each such party shall (i) with respect to each
Additional Servicer engaged by such Master Servicer, Special Servicer, Trustee
or Paying Agent that is an Initial Sub-Servicer, use commercially reasonable
efforts to cause and (ii) with respect to each other Additional Servicer with
which it has entered into a servicing relationship with respect to the Mortgage
Loans, cause the delivery to) the Depositor and the Paying Agent on or before
March 15 of each year, commencing in March 2007, an Officer's Certificate
stating, as to the signer thereof, that (A) a review of such Certifying
Servicer's activities during the preceding calendar year or portion thereof and
of such Certifying Servicer's performance under this Agreement, or the
applicable sub servicing agreement or primary servicing agreement in the case of
an Additional Servicer, has been made under such officer's supervision and (B)
to the best of such officer's knowledge, based on such review, such Certifying
Servicer has fulfilled all its obligations under this Agreement, or the
applicable sub servicing agreement or primary servicing agreement in the case of
an Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof. Each Master Servicer, the Special Servicer, the
Trustee and the Paying Agent shall, and each such party shall (i) with respect
to each Additional Servicer engaged by such Master Servicer, Special Servicer,
Trustee or Paying Agent that is an Initial Sub-Servicer, use commercially
reasonable efforts to cause, and (ii) with respect to each other Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans, cause to forward a copy of each such statement (or, in the
case of the Trustee and the Paying Agent, make a copy of each such statement
available on its internet website) to the Rating Agencies and the Directing
Certificateholder. Promptly after receipt of each such Officer's Certificate,
the Depositor shall review each such Officer's Certificate and, if applicable,
consult with any Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as applicable, as to the nature of any failures by such Master
Servicer, the Special Servicer, Trustee or Paying Agent, respectively, or any
related Additional Servicer with which any Master Servicer, the Special
Servicer, the Trustee or the Paying Agent as applicable, has engaged in the
fulfillment of any Master Servicer's, the Special Servicer's, the Trustee's, the
Paying Agent's or Additional Servicer's obligations hereunder or under the
applicable sub-servicing or primary servicing agreement. The obligations of each
Master Servicer, the Special Servicer, the Trustee, the Paying Agent and each
Additional Servicer under this Section apply to each Master Servicer, the
Special Servicer, the Trustee, the Paying Agent and each Additional Servicer
that serviced a Mortgage Loan during the applicable period, whether or not each
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or
Additional Servicer is acting as the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or Additional Servicer at the time such Officer's
Certificate is required to be delivered. None of the Master Servicer, Special
Servicer or Additional Servicer shall be required to cause the delivery of any
such statement until April 15 in any given year so long as it has received
written confirmation from the Depositor that a report on Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
In the event any Master Servicer, the Special Servicer, the Trustee
or the Paying Agent is terminated or resigns pursuant to the terms of this
Agreement, such party shall provide, and each Master Servicer and the Special
Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such party
that is an Additional Servicer that resigns or is terminated under any
applicable servicing agreement, use its reasonable efforts to cause and (ii)
such party shall (and with respect to any other Additional Servicer engaged by
such party that resigns or is terminated under any applicable servicing
agreement, cause such Additional Servicer to provide) an annual statement of
compliance pursuant to this Section 11.09 with respect to the period of time
that the applicable Master Servicer, the Special Servicer, the Trustee or the
Paying Agent was subject to this Agreement or the period of time that such
Additional Servicer was subject to such other servicing agreement.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 of each year, commencing in March
2007, each Master Servicer, the Special Servicer, the Trustee and the Paying
Agent, each at its own expense, shall furnish (and each party shall (i) with
respect to each Initial Sub-Servicer engaged by such Master Servicer, Special
Servicer, Trustee and Paying Agent that is a Servicing Function Participant, use
commercially reasonable efforts to cause and (ii) with respect to each other
Servicing Function Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans, cause to furnish) engaged by it
to, furnish to the Paying Agent and the Depositor, with a copy to the Rating
Agencies, a report on an assessment of compliance with the Servicing Criteria
applicable to it that contains (A) a statement by such Reporting Servicer of its
responsibility for assessing compliance with the Applicable Servicing Criteria,
(B) a statement that such Reporting Servicer used the Servicing Criteria to
assess compliance with the Applicable Servicing Criteria, (C) such Reporting
Servicer's assessment of compliance with the Applicable Servicing Criteria as of
and for the period ending the end of the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 11.05, including, if there has been any
material instance of noncompliance with the Applicable Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such Reporting Servicer's assessment of compliance with the Applicable
Servicing Criteria as of and for such period.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address the
Applicable Servicing Criteria specified on Exhibit W hereto delivered to the
Depositor on the Closing Date. Promptly after receipt of each such report, (i)
the Depositor may review each such report and, if applicable, consult with each
Reporting Servicer as to the nature of any material instance of noncompliance
with the Servicing Criteria applicable to it (and each Servicing Function
Participant engaged or utilized by each Reporting Servicer, as applicable), and
(ii) the Paying Agent shall confirm that the assessments taken individually
address the Relevant Servicing Criteria for each party as set forth on Exhibit W
and notify the Depositor of any exceptions. None of the Master Servicer, the
Special Servicer, the Paying Agent, the Trustee or any Servicing Function
Participant shall be required to cause the delivery of any such assessments
until April 15th in any given year so long as it has received written
confirmation from the Depositor that a report on Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year.
(b) Each Master Servicer, the Special Servicer, the Trustee and the
Paying Agent (and any Servicing Function Participant with which any Master
Servicer, Special Servicer, Trustee or Paying Agent has entered into a servicing
relationship) hereby acknowledge and agree that the Applicable Servicing
Criteria set forth on Exhibit W is appropriately completed as set forth above
with respect to such party.
(c) No later than the end of each fiscal year for the Trust, each
Master Servicer and the Special Servicer shall notify the Paying Agent and the
Depositor as to the name of each Additional Servicer engaged by it and each
Servicing Function Participant utilized by it, in each case other than with
respect to any Initial Sub-Servicer, and the Trustee and the Paying Agent shall
notify the Depositor as to the name of each Servicing Function Participant
utilized by it, and each such notice will specify what specific Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant. When the Master Servicers, the Special
Servicer and any Additional Servicer submit their assessments to the Paying
Agent, such parties, as applicable, will also at such time include the
assessment (and related attestation pursuant to Section 11.11) of each Servicing
Function Participant engaged by it and shall indicate to the Paying Agent what
Applicable Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant.
In the event any Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide (and each Master Servicer and the Special
Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such
Master Servicer or Special Servicer that is a Servicing Function Participant
that resigns or is terminated under any applicable servicing agreement, use its
reasonable efforts to cause such Servicing Function Participant and (ii) with
respect to any other Servicing Function Participant that resigns or is
terminated under any applicable servicing agreement, cause such Servicing
Function Participant to provide) an annual assessment of compliance pursuant to
this Section 11.10, coupled with an attestation as required in Section 11.11 in
respect to the period of time that the applicable Master Servicer, the Special
Servicer, the Trustee or the Paying Agent was subject to this Agreement or the
period of time that the Additional Servicer was subject to such other servicing
agreement.
Section 11.11 Annual Independent Public Accountants' Servicing
Report. On or before March 15 of each year, commencing in March 2007, each
Master Servicer, the Special Servicer, the Trustee and the Paying Agent, each at
its own expense, shall cause (and each Master Servicer, the Special Servicer,
the Trustee and the Paying Agent shall (i) with respect to each Initial
Sub-Servicer engaged by such Master Servicer, Special Servicer, Trustee or
Paying Agent that is a Servicing Function Participant use commercially
reasonable efforts to cause and (ii) with respect to each other Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans to cause) a registered public accounting firm
(which may also render other services to each Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the applicable Servicing Function
Participant, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish a report to the Trustee, the Paying
Agent and the Depositor, with a copy to the Rating Agencies and the Directing
Certificateholder, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such Reporting Servicer, which
includes an assessment from such Reporting Servicer of its compliance with the
Applicable Servicing Criteria and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued or
adopted by the PCAOB, it is expressing an opinion as to whether such Reporting
Servicer's assessment of compliance with the Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such party's assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Each such related accountant's attestation report
shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act. Such report must be available for
general use and not contain restricted use language.
Promptly after receipt of such report from each Master Servicer, the
Special Servicer, the Trustee, the Paying Agent or any Servicing Function
Participant, (i) the Depositor shall review the report and, if applicable,
consult with each Master Servicer, the Special Servicer, the Trustee or the
Paying Agent as to the nature of any defaults by each Master Servicer, the
Special Servicer, the Trustee or any Servicing Function Participant with which
it has entered into a servicing relationship with respect to the Mortgage Loans,
as the case may be, in the fulfillment of any of the Master Servicers', the
Special Servicer's, the Trustee's, the Paying Agent's or the applicable
Servicing Function Participants' obligations hereunder or under the applicable
sub-servicing or primary servicing agreement, and (ii) the Paying Agent shall
confirm that each accountants' attestation report submitted pursuant to this
Section is coupled with an assessment of compliance meeting the requirements of
Section 11.10 and notify the Depositor of any exceptions. None of the Master
Servicers, the Special Servicer, the Trustee, the Paying Agent nor any Servicing
Function Participant shall be required to deliver, or to endeavor to cause the
delivery of, such reports until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding fiscal year.
Section 11.12 Indemnification. Each of the Master Servicers, the
Special Servicer, the Trustee and the Paying Agent shall indemnify and hold
harmless each Certification Party from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Certification Party
arising out of (i) an actual breach by the Master Servicers, the Special
Servicer, the Trustee or the Paying Agent, as the case may be, of its
obligations to the Depositor or the Paying Agent under this Article XI or (ii)
negligence, bad faith or willful misconduct on the part of the Master Servicers,
the Special Servicer, the Trustee or the Paying Agent in the performance of such
obligations.
Each Master Servicer, the Special Servicer, the Trustee and the
Paying Agent shall (i) with respect to any Initial Sub-Servicer engaged by such
Master Servicer, Special Servicer, Trustee or Paying Agent that is a Servicing
Function Participant or Additional Servicer, use commercially reasonable efforts
to cause such party to and (ii) with respect to each other Additional Servicer
and each Servicing Function Participant with which, in each case, it has entered
into a servicing relationship with respect to the Mortgage Loans to cause such
party to indemnify and hold harmless each Certification Party from and against
any and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments and any other costs, fees and expenses
incurred by such Certification Party arising out of (i) a breach of its
obligations to the Depositor or the Paying Agent to provide any of the annual
compliance statements or annual assessment of compliance reports or attestation
reports pursuant to this Agreement, the applicable sub-servicing or primary
servicing agreement or (ii) negligence, bad faith or willful misconduct its part
in the performance of such obligations or (iii) any failure by a Servicer (as
defined in Section 11.02(b)) to identify a Servicing Function Participant
pursuant to Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then each Master
Servicer, the Special Servicer, the Trustee, the Paying Agent, the Additional
Servicer or other Servicing Function Participant (the "Performing Party") shall
contribute to the amount paid or payable to the Certification Party as a result
of the losses, claims, damages or liabilities of the Certification Party in such
proportion as is appropriate to reflect the relative fault of the Certification
Party on the one hand and the Performing Party on the other in connection with a
breach of the Performing Party's obligations pursuant to this Article XI (or
breach of its obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports) or the Performing
party's negligence, bad faith or willful misconduct in connection therewith.
Each Master Servicer, the Special Servicer, the Trustee and the Paying Agent
shall (i) with respect to any Initial Sub-Servicer engaged by such Master
Servicer, Special Servicer, Trustee or Paying Agent that is a Servicing Function
Participant or Additional Servicer, use commercially reasonable efforts to cause
such party to and (ii) with respect to each other Additional Servicer or
Servicing Function Participant, in each case, with which it has entered into a
servicing relationship with respect to the Mortgage Loans cause such party to
agree to the foregoing indemnification and contribution obligations. This
Section 11.12 shall survive the termination of this Agreement or the earlier
resignation or removal of any Master Servicer or the Special Servicer.
Section 11.13 Amendments. This Article XI may be amended by the
parties hereto with their written consent pursuant to Section 12.01 for purposes
of complying with Regulation AB and/or to conform to standards developed within
the commercial mortgage-backed securities market and the Xxxxxxxx-Xxxxx Act or
for purposes of designating the Certifying Person without, in each case, any
Opinions of Counsel, Officer's Certificates, Rating Agency confirmations or the
consent of any Certificateholder, notwithstanding anything to the contrary
contained in this Agreement; provided that the reports and certificates required
to be prepared pursuant to Sections 11.09, 11.10 and 11.11 shall not be
eliminated without Rating Agency confirmation.
Section 11.14 Regulation AB Notices. Any notice required to be
delivered by the Paying Agent or the Trustee, as the case may be, to the
Depositor pursuant to this Article XI may be delivered via email (and
additionally delivered via phone or telecopy), notwithstanding the provisions of
Section 12.05, to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, telecopy number:
000-000-0000, telephone number: 000-000-0000 and email:
Xxxxxx.x.xxxxx@xxxxxxxx.xxx, with a copy to Xxxxxx Xxxxx, Managing Director and
Associate General Counsel, JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000, telephone number:
000-000-0000 and email: Xxxxx_xxxxxx@xxxxxxxx.xxx.
Section 11.15 Certain Matters Relating to the Future Securitization
of the Serviced A2 Notes.
(a) Each of the Trustee, the Paying Agent, Master Servicer No. 2 and
the Special Servicer shall, and Master Servicer No. 2 and the Special Servicer
shall use reasonable efforts to cause any sub-servicer appointed with respect to
any Serviced A2 Note to, upon request or notice from a Mortgage Loan Seller,
cooperate with the Mortgage Loan Seller selling any Serviced A2 Note into a
securitization that is required to comply with Regulation AB (a "Regulation AB
Companion Loan Securitization") and, to the extent needed in order to comply
with Regulation AB, provide to the Mortgage Loan Seller information about itself
that such Mortgage Loan Seller reasonably requires to meet the requirements of
Items 1117 and 1119 and paragraphs (b), (c)(3), (c)(4) and (c)(5) of Item 1108
of Regulation AB and shall cooperate with such Mortgage Loan Seller to provide
such other information as may be necessary to comply with the requirements of
Regulation AB. Each of the Trustee, the Paying Agent, Master Servicer No. 2 and
the Special Servicer understands that such information may be included in the
offering material related to a Regulation AB Companion Loan Securitization and
agrees to indemnify and hold the related depositor and underwriters involved in
the offering of the related Certificates harmless for any costs, liabilities,
fees and expenses incurred by the depositor or such underwriters as a result of
any material misstatements or omissions or alleged material misstatements or
omissions in any such offering material to the extent that such material
misstatement or omission was made in reliance upon any such information provided
by the Trustee (where such information pertains to Xxxxx Fargo Bank, N.A.
individually and not to any specific aspect of the Trustee's duties or
obligations under this Agreement), the Paying Agent (where such information
pertains to LaSalle Bank National Association individually and not to any
specific aspect of the Paying Agent's duties or obligations under this
Agreement), Master Servicer No. 2 (where such information pertains to Wachovia
Bank, National Association individually and not to any specific aspect of the
Master Servicer No. 2's duties or obligations under this Agreement) and the
Special Servicer (where such information pertains to LNR Partners, Inc.
individually and not to any specific aspect of the Special Servicer's duties or
obligations under this Agreement), as applicable, to such depositor,
underwriters or Mortgage Loan Seller as required by this clause (a).
Notwithstanding the foregoing, to the extent that the information provided by
the Trustee, the Paying Agent, Master Servicer No. 2 or the Special Servicer, as
applicable, for inclusion in the offering materials related to such Regulation
AB Companion Loan Securitization is substantially and materially similar to the
information provided by such party with respect to the offering materials
related to this transaction, subject to any required changes due to any
amendments to Regulation AB or any changes in the interpretation of Regulation
AB, such party shall be deemed to be in compliance with this Section 11.15(a).
Any indemnification agreement executed by the Trustee, Paying Agent, Master
Servicer No. 2 or Special Servicer in connection with the Regulation AB
Companion Loan Securitization shall be substantially similar to the related
indemnification agreement executed in connection with this Agreement.
(b) Each of the Trustee, the Paying Agent, Master Servicer No. 2 and
the Special Servicer shall, and Master Servicer No. 2 and the Special Servicer
shall use reasonable efforts to cause any sub-servicer appointed with respect to
a Serviced A2 Note to, upon request or notice from such parties (which request
or notice may be given once at the closing of such Regulation AB Companion Loan
Securitization instead of each time a filing is required), cooperate with the
trustee, master servicer or special servicer for any Regulation AB Companion
Loan Securitization in preparing each Form 10-D required to be filed by such
Regulation AB Companion Loan Securitization (until January 30 of the first year
in which the trustee for such Regulation AB Companion Loan Securitization files
a Form 15 Suspension Notice with respect to the related trust) and shall provide
to such trustee or master servicer within the time period set forth in the
pooling and servicing agreement (so long as such time period is no earlier than
the time periods set forth herein) for such Regulation AB Companion Loan
Securitization such information relating to a Serviced A2 Note as may be
necessary for the servicer and trustee of the Regulation AB Companion Loan
Securitization to comply with the reporting requirements of Regulation AB;
provided however that any parties to any Regulation AB Companion Loan
Securitization shall consult with the Trustee, the Paying Agent, Master Servicer
No. 2 and the Special Servicer (and Master Servicer No. 2 shall consult with the
Primary Servicer and any sub-servicer appointed with respect to a Serviced A2
Note), and the Trustee, the Paying Agent, Master Servicer No. 2 and the Special
Servicer shall cooperate with such parties in respect of establishing the time
periods for preparation of the Form 10-D reports in the documentation for such
Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to
the extent the Trustee, the Paying Agent, Master Servicer No. 2, or the Special
Servicer complies in all material respects with the timing, reporting and
attestation requirements in Article XI of this Agreement with respect to the
comparable timing, reporting and attestation requirements contemplated in this
section 11.15(b) with respect to such Regulation AB Companion Loan
Securitization, such party shall be deemed to be in compliance with the
provisions of this Section 11.15(b).
(c) Each of the Trustee, the Paying Agent, Master Servicer No. 2 and
the Special Servicer shall, and Master Servicer No. 2 and the Special Servicer
shall use reasonable efforts to cause any sub-servicer appointed with respect to
a Serviced A2 Note to, upon request from such trustee (which request or notice
may be given once at the closing of such Regulation AB Companion Loan
Securitization instead of each time a filing is required), provide the trustee
under a Regulation AB Companion Loan Securitization (until January 30 of the
first year in which the trustee for such Regulation AB Companion Loan
Securitization files a Form 15 Suspension Notice with respect to the related
trust) information with respect to any event that is required to be disclosed
under Form 8-K with respect to a Serviced A2 Note within two Business Days after
the occurrence of such event of which it has knowledge. Notwithstanding the
foregoing, to the extent the Trustee, the Paying Agent, Master Servicer No. 2,
or the Special Servicer complies in all material respects with the timing,
reporting and attestation requirements in Article XI of this Agreement with
respect to the comparable timing, reporting and attestation requirements
contemplated in this section 11.15(c) with respect to such Regulation AB
Companion Loan Securitization, such party shall be deemed to be in compliance
with the provisions of this Section 11.15(c).
(d) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the Paying Agent, Master Servicer
No. 2 and the Special Servicer shall, and Master Servicer No. 2 and the Special
Servicer shall use reasonable efforts to cause any sub-servicer appointed with
respect to a Serviced A2 Note to, upon request from such trustee (which request
or notice may be given once at the closing of such Regulation AB Companion Loan
Securitization instead of each time a filing is required), provide, with respect
to itself, to the trustee under such Regulation AB Companion Loan
Securitization, to the extent required pursuant to Item 1122 of Regulation AB,
(i) a report on an assessment of compliance with the servicing criteria to the
extent required pursuant to Item 1122(a) of Regulation AB, (ii) a registered
accounting firm's attestation report on such Person's assessment of compliance
with the applicable servicing criteria to the extent required pursuant to Item
1122(b) of Regulation AB and (iii) such other information as may be required
pursuant to Item 1122(c) of Regulation AB. Notwithstanding the foregoing, to the
extent the Trustee, the Paying Agent, Master Servicer No. 2, or the Special
Servicer complies in all material respects with the timing, reporting and
attestation requirements in Article XI of this Agreement with respect to the
comparable timing, reporting and attestation requirements contemplated in this
section 11.15(d) with respect to such Regulation AB Companion Loan
Securitization, such party shall be deemed to be in compliance with the
provisions of this Section 11.15(d).
(e) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the Paying Agent, Master Servicer
No. 2 and the Special Servicer shall, and Master Servicer No. 2 and the Special
Servicer shall use reasonable efforts to cause any sub-servicer appointed with
respect to a Serviced A2 Note to, to the extent required pursuant to Item 1123
of Regulation AB, deliver, with respect to itself, to the trustee, upon request
from such trustee (which request or notice may be given once at the closing of
such Regulation AB Companion Loan Securitization instead of each time a filing
is required), under such Regulation AB Companion Loan Securitization a servicer
compliance statement signed by an authorized officer of such Person that
satisfies the requirements of Item 1123 of Regulation AB. Notwithstanding the
foregoing, to the extent the Trustee, the Paying Agent, Master Servicer No. 2,
or the Special Servicer complies in all material respects with the timing,
reporting and attestation requirements in Article XI of this Agreement with
respect to the comparable timing, reporting and attestation requirements
contemplated in this section 11.15(e) with respect to such Regulation AB
Companion Loan Securitization, such party shall be deemed to be in compliance
with the provisions of this Section 11.15(e).
(f) Each of the Trustee, the Paying Agent, Master Servicer No. 2 and
the Special Servicer, shall use reasonable efforts to cause a sub-servicer to
agree, (severally but not jointly) to indemnify (such indemnity limited to each
such parties respective failure described below) and hold the related Mortgage
Loan Seller, depositor, trustee or master servicer under a Regulation AB
Companion Loan Securitization harmless for any costs, liabilities, fees and
expenses incurred by such Mortgage Loan Seller, depositor, trustee or master
servicer as a result of any failure by the Trustee, the Paying Agent, Master
Servicer No. 2 and the Special Servicer, as applicable, to comply with the
reporting requirements to the extent applicable set forth under Sections
11.15(b), (c), (d) or (e) above.
Any subservicing agreement related to a Serviced A2 Note shall
contain a provision requiring the related Sub-Servicer to provide to Master
Servicer No. 2 or Special Servicer, as applicable, information, reports and
certificates with respect to itself comparable to any information, reports or
certificates required to be provided by Master Servicer No. 2 or Special
Servicer pursuant to this Section 11.15, even if such Sub-Servicer is not
otherwise required to provide such information, reports or certificates to any
Person in order to comply with Regulation AB. Such information, reports or
certificates shall be provided to Master Servicer No. 2 or Special Servicer, as
applicable, no later than two Business Days prior to the date on which Master
Servicer No. 2 or Special Servicer, as applicable, is required to deliver its
comparable information, reports or certificates pursuant to this Section 11.15.
[End of Article XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any
tax on the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC pursuant to the Code that would be a claim against the Trust Fund or
either of the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the
Trustee and the Paying Agent have received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that (a)
such action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax and (b) such
action will not adversely affect in any material respect the interests of
any Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates or class of Companion Loan Securities as evidenced by a
letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto or (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates or class of Companion Loan Securities, as evidenced
by a letter from each Rating Agency;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates or Companion Loan Securities by each Rating Agency, provided
that such change shall not result in the downgrade, withdrawal or
qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities, as evidenced by a letter from
each Rating Agency to such effect; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicers, the
Special Servicer, the Trustee and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard
for such provisions has changed, in order to conform to such industry
standard, (b) such modification does not adversely affect the status of
the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or of the Grantor
Trust as a grantor trust, as evidenced by an Opinion of Counsel and (c)
each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or
qualification of any of the then current ratings of any Class of
Certificates or class of Companion Loan Securities.
provided that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
(c) Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicers nor the Special Servicer will be
required to consent to any amendment hereto without having first received an
Opinion of Counsel (at the Trust Fund's expense) to the effect that such
amendment is permitted hereunder and that such amendment or the exercise of any
power granted to the Master Servicers, the Depositor, the Special Servicer, the
Trustee, the Paying Agent or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause
the Grantor Trust to fail to qualify as a grantor trust or result in the
imposition of a tax with respect thereto.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the One & Two Prudential Plaza A2 Noteholder and the
Trustee and shall furnish a copy of such amendment to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if any Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 12.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates or any class of Companion Loan Securities.
(i) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Swap Counterparty or the Class A-3FL Certificates or the
rights of the Swap Counterparty under the Swap Contract or the rights of the
holders of the Class A-3FL Certificates without the consent of the Swap
Counterparty and 66 2/3% of the Holders of the Class A-3FL Certificates,
respectively.
Section 12.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 12.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 12.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to the Paying Agent and the Trustee which shall be deemed to
have been duly given only when received), to: (i) in the case of the Depositor,
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President,
telecopy number: (000) 000-0000; (ii) (a) in the case of Master Servicer No. 1,
Capmark Finance Inc., 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Servicing Managing Director; telecopy number: (000) 000-0000; (b) in the case of
Master Servicer No. 2, Wachovia Bank, National Association, NC 1075, 0000
Xxxxxxxx Xxxxx XXX0, Xxxxxxxxx, XX 00000-0000 (for overnight mail only),
28262-1075 (for regular mail), Attention: Portfolio Management Group Re: X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Series 2006-LDP7, telecopy
number: (000) 000-0000; (iii) in the case of the Special Servicer, LNR Partners,
Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000; Attention:
Xxxxx Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq., telecopy number: (000) 000 0000
and Attention: Xxxxxx Xxxxxxx, telecopy number: (000) 000-0000, with copies to
Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx, LLP, 000 X. Xxxxxxxx Xxxx., Xxxxx 0000,
Xxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxx, Esq., telecopy number: (305)
351-2229; (iv) in the case of the Trustee, Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services (CMBS), X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Series
2006-LDP7, fax number (000) 000-0000; (v) in the case of the initial Paying
Agent, LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services--X.X.
Xxxxxx Commercial Mortgage Securities Trust 2006-LDP7, fax number: (312)
000-0000; (vi) in the case of the Rating Agencies, (a) Standard & Poor's Ratings
Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 0003, Attention: CMBS
Surveillance Group, fax number: (000) 000-0000, (b) Xxxxx'x Investors Services,
Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Surveillance Group, fax number: (212) 000- 0000 and (c)
Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Commercial
Mortgage Backed Securities Group, fax number: (000) 000 0000; (vii) in the case
of the Mortgage Loan Sellers, (a) JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx, Vice President, telecopy number: (212)
834-6593, (b) Capmark Finance Inc., 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxx X. Xxxxxxx, telecopy number: (000) 000-0000, (c) LaSalle
Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx, fax number: (000) 000-0000, with a
copy to LaSalle Bank Corporation, Legal Department, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Counsel,
telecopy number: (000) 000-0000, (d) Nomura Credit & Capital, Inc., 2 World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: N. Xxxxx
XxXxxxx, fax number: (000) 000-0000 and (e) Eurohypo AG, New York Branch, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx, fax
number: (000) 000-0000; (viii) in the case of Directing Certificateholder, LNR
Securities Holdings, LLC, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxx 00000; Attention: Xxxxxx X. Xxxxxx, telecopy number: (000) 000-0000;
(ix) in the case of the JQH Hotel Portfolio Companion Loan, Nomura Credit &
Capital, Inc., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxx Xxxxxx, with a copy to Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxxxx, Esq., telecopy number: (000) 000-0000; (x) in the case of the
PennCom Plaza Companion Loan, Capmark Finance Inc., 000 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000, Attn.: Servicing Accounting - Manager, telecopy no.:
000-000-0000; (xi) in the case of the Xxxxx Crest Companion Loan, CBA Mezzanine
Capital Finance, LLC, 00 XXX Xxxxxxx, 0xx Xxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxxxx
00000, Attention: Xxxxxx X. Xxxxxxx, telecopy number: (000) 000-0000; (xii) in
the case of the holder of the One & Xxx Xxxxxxxxxx Xxxxx X0 Xxxx, XXXxxxxx Chase
Bank, N.A., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx, Vice
President, telecopy number: (000) 000-0000; and (xiii) in the case of the holder
of the Xxxxxxx PLC Building--Xxxxxxxx Companion Loan, Caplease, LP, 000 Xxxxxx
Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Accounts, the Distribution Accounts, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account, the Interest Reserve
Account and, if established, the REO Account, and all reinvestment earnings on
such amounts, and all of the Depositor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Mortgage Loans and (ii) this Agreement shall constitute a security agreement
under applicable law. This Section 11.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the applicable UCC.
Section 12.08 Successors and Assigns; Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. The Swap
Counterparty and each Mortgage Loan Seller and the Companion Holders (and their
agents, including any trustee or servicer with respect to the One & Two
Prudential Plaza A2 Note or any other Companion Loan) are intended third-party
beneficiaries in respect of the respective rights afforded them hereunder. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
Section 12.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 12.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency and the
Swap Counterparty (and any Rating Agency for any Companion Loan Securities to
the extent applicable to the One & Two Prudential Plaza Whole Loan or the San
Xxxxxxxx Whole Loan) with respect to each of the following of which it has
actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Trustee, Paying Agent,
any Master Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement.
(b) Each Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of any Certificate Accounts;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater 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;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicers and the
Special Servicer shall promptly furnish to each Rating Agency (and any Rating
Agency for any Companion Loan Securities to the extent applicable to the One &
Two Prudential Plaza Whole Loan or the San Xxxxxxxx Whole Loan) copies of
inspection reports and other items delivered to each of the Master Servicers and
Special Servicer pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of the Distribution Accounts and (ii)
the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, each Master Servicer and the
Special Servicer, as applicable, shall furnish to each Rating Agency with
respect to each Mortgage Loan such information as the Rating Agency shall
reasonably request and which the Trustee, the Paying Agent, such Master Servicer
or Special Servicer, can reasonably provide in accordance with applicable law
and without waiving any attorney-client privilege relating to such information
or violating the terms of this Agreement or any Mortgage Loan documents. The
Trustee, each Master Servicer and Special Servicer, as applicable, may include
any reasonable disclaimer it deems appropriate with respect to such information.
Notwithstanding anything to the contrary herein, nothing in this Section 12.10
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
[End of Article XII]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP.,
Depositor
By: /s/ Xxxxxxx X. Xxx
------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
CAPMARK FINANCE INC.,
Master Servicer No. 1
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer No. 2
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate
LNR PARTNERS, INC.,
Special Servicer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
Trustee
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 22nd day of June 2006, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxx known to me to be a Vice
President of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Notary Public
[SEAL]
My commission expires:
02/04/10
------------------------------------
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 26th day of June 2006, before me, a notary public in and or
said State, personally appeared Xxxxxx Xxxxxxxxxx known to me to be a Vice
President of Capmark Finance Inc., that executed the within instrument, and also
known to me to be the person who executed it on behalf of such corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxx
----------------------------------
Notary Public
[SEAL]
My commission expires:
1-12-2010
------------------------------------
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 22nd day of June 2006, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx known to me to be an Associate
of Wachovia Bank, National Association, that executed the within instrument, and
also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxx
----------------------------------
Notary Public
[SEAL]
My commission expires:
October 10, 2010
------------------------------------
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 26th day of June, 2006
by Xxxxxx X. Xxxxxx, as Vice President on behalf of LNR Partners, Inc., a
Florida corporation; such individual is personally known to me or has produced a
driver's license as identification.
Print Name: Xxxxx X. Xxxxxx
Notary Public, State of Florida
My commission expires:
[NOTARY SEAL] /s/ Xxxxx X. Xxxxxx
----------------------------------
Print Name: Xxxxx X. Xxxxxx
Notary Public, State of Florida
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of June 2006, before me, a notary public in and for
said State, personally appeared Xxxxxxx Xxxxxxx, known to me to be a Vice
President of Xxxxx Fargo Bank, N.A., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
----------------------------------
Notary Public
[SEAL]
My commission expires:
5-3-2010
------------------------------------
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 29th day of June 2006, before me, a notary public in and or
said State, personally appeared Xxxxx X. Xxxx known to me to be a FVP of LaSalle
Bank National Association, that executed the within instrument, and also known
to me to be the person who executed it on behalf of such national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxx
----------------------------------
Notary Public
[SEAL]
My commission expires:
9/21/2009
------------------------------------
EXHIBIT A-1
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $95,081,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AA 9
DEFINED HEREIN)
ISIN NO.: US46628FAA93
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026011221
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-1-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $95,081,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $255,782,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AB 7
DEFINED HEREIN)
ISIN NO.: US46628FAB76
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026011477
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-2-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $255,782,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-3A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $75,000,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AC 5
DEFINED HEREIN)
ISIN NO.: US46628FAC59
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026011531
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-3A-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-3A CERTIFICATES
AS OF THE CLOSING DATE: $75,000,000
CLASS A-3A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-3FL
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
REPRESENTS AN UNDIVIDED BENEFICIAL INTEREST IN A REMIC REGULAR INTEREST AND A
SWAP CONTRACT AND CONSTITUTES AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-3FL CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
PASS-THROUGH RATE: FLOATING IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $100,000,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AD 3
DEFINED HEREIN)
ISIN NO.: US46628FAD33
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026005752
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-3FL-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-3FL CERTIFICATES
AS OF THE CLOSING DATE: $100,000,000
CLASS A-3FL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3FL Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Master Servicers and the Special Servicer. A summary of certain of
the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3FL Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Class A-3FL Regular
Interest, the Swap Contract and the Floating Rate Account. Each Holder of this
Certificate, by acceptance hereof, agrees to treat, and take no action
inconsistent with the treatment of, this Certificate in accordance with the
preceding sentence for purposes of federal income taxes, state and local income
and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges in limited circumstances as provided in the Pooling
and Servicing Agreement. All sums distributable on this Certificate are payable
in the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (calculated on the basis of
the actual number of days in the month and assuming each year has 360 days)
during the applicable Interest Accrual Period relating to such Distribution Date
at the Class A-3FL Pass-Through Rate specified above on the Certificate Balance
of this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount equal to this Certificate's pro rata share of the Class A-3FL Available
Funds to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement. Distributions
in respect of the Class A-3FL Certificates may depend, in part, on payments from
the Swap Counterparty under the Swap Contract as more specifically set forth in
the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the
Distribution Accounts and the Floating Rate Account will be held on behalf of
the Trustee on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Paying Agent (with respect to the Distribution
Accounts and the Floating Rate Account) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate
Accounts will be paid to the applicable Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3FL Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of $100,000 initial Certificate Balance, and
in integral multiples of $1 in excess thereof, with one Certificate of each such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3FL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-3B
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $94,109,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AE 1
DEFINED HEREIN)
ISIN NO.: US46628FAE16
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026011825
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-3B-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-3B CERTIFICATES
AS OF THE CLOSING DATE: $94,109,000
CLASS A-3B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3B Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3B Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: [$500,000,000]
[$500,000,000] [$500,000,000] TRUSTEE: XXXXX FARGO BANK, N.A.
[$116,079,000]
PAYING AGENT: LASALLE BANK NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF JUNE 1, 2006
CUSIP NO.: 46628F AF 8
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS ISIN NO.: US46628FAF80
DEFINED HEREIN)
COMMON CODE NO.: 025970594
CLOSING DATE: JUNE 29, 2006
CERTIFICATE NO.: A-4-[--]
FIRST DISTRIBUTION DATE:
JULY 17, 2006
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $1,616,079,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-SB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $170,204,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AH 4
DEFINED HEREIN)
ISIN NO.: US46628FAH47
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012368
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-SB-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-SB CERTIFICATES
AS OF THE CLOSING DATE: $170,204,000
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-SB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-SB Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-SB Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-SB Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-1A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $351,669,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AJ 0
DEFINED HEREIN)
ISIN NO.: US46628FAJ03
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012562
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-1A-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $351,669,000
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS X
THIS CLASS X CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS X
CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: [$500,000,000]
[$500,000,000] [$500,000,000] TRUSTEE: XXXXX FARGO BANK, N.A.
[$500,000,000] [$500,000,000]
[$500,000,000] [$500,000,000] PAYING AGENT: LASALLE BANK NATIONAL
[$439,892,158] ASSOCIATION
DATE OF POOLING AND SERVICING CUSIP NO.: 46628F AK 7
AGREEMENT: AS OF JUNE 1, 2006
ISIN NO.: US46628FAK75
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS COMMON CODE: 026014387
DEFINED HEREIN)
CERTIFICATE NO.: X-[--]
CLOSING DATE: JUNE 29, 2006
FIRST DISTRIBUTION DATE:
JULY 17, 2006
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X CERTIFICATES AS OF THE
CLOSING DATE: $3,939,892,158
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-LDP7 and are issued in the
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class X Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount, and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-M
THIS CLASS A-M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $393,989,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AM 3
DEFINED HEREIN)
ISIN NO.: US46628FAM32
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012694
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-M-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES
AS OF THE CLOSING DATE: $393,989,000
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-M Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-M Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $310,267,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AN 1
DEFINED HEREIN)
ISIN NO.: US46628FAN15
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012724
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: A-J-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $310,267,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $78,798,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AP 6
DEFINED HEREIN)
ISIN NO.: US46628FAP62
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012767
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: B-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $78,798,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $44,323,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AQ 4
DEFINED HEREIN)
ISIN NO.: US46628FAQ46
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012821
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: C-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $44,323,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act __________________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: ___________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any charge whatever.
__________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________ for the account of
____________________________ account number _____________ or, if mailed by
check, to _________________________________________. Statements should be mailed
to _________________________________________. This information is provided by
assignee named above, or ______________________, as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $14,775,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AR 2
DEFINED HEREIN)
ISIN NO.: US46628FAR29
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012902
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: D-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $14,775,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $39,399,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46628F AS 0
DEFINED HEREIN)
ISIN NO.: US46628FAS02
CLOSING DATE: JUNE 29, 2006
COMMON CODE NO.: 026012953
FIRST DISTRIBUTION DATE:
JULY 17, 2006 CERTIFICATE NO.: E-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $39,399,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $39,399,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AB 2](1) [46628F AU
DEFINED HEREIN) 5](2) [46628F AV 3](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AB23](1)
[US46628FAU57](2) [US46628FAV31](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026019702](1)
[026013119](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: F-[--]
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $39,399,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $49,248,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AC 0](1) [46628F AW
DEFINED HEREIN) 1](2) [46628F AX 9](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AC06](1)
[US46628FAW14](2) [US46628FAX96](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026019826](1)
[026013178](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: G-[--]
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $49,248,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $39,399,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AD 8](1) [46628F AY
DEFINED HEREIN) 7](2) [46628F AZ 4](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AD88](1)
[US46628FAY79](2) [US46628FAZ45](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026019915](1)
[026013275](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: H-[--]
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $39,399,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $44,324,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AE 6](1) [46628F BA
DEFINED HEREIN) 8](2) [46628F BB 6](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AE61](1)
[US46628FBA84](2) [US46628FBB67](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026020093](1)
[026013356](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: J-[--]
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $44,324,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $14,775,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AF 3](1) [46628F BC
DEFINED HEREIN) 4](2) [46628F BD 2](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AF37](1)
[US46628FBC41](2) [US46628FBD24](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026020158](1)
[026013470](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: K-[--]
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $14,775,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $14,774,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AG 1](1) [46628F BE
DEFINED HEREIN) 0](2) [46628F BF 7](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AG10](1)
[US46628FBE07](2) [US46628FBF71](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026020247](1)
[026013496](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: L-[--]
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $14,774,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $19,700,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AH 9](1) [46628F BG
DEFINED HEREIN) 5](2) [46628F BH 3](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AH92](1)
[US46628FBG54](2) [US46628FBH38](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026020280](1)
[026013518](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: M-[--]
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $19,700,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $4,925,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AJ 5](1) [46628F BJ
DEFINED HEREIN) 9](2) [46628F BK 6](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AJ58](1)
[US46628FBJ93](2) [US46628FBK66](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026020310](1)
[026013585](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: N-[--]
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $4,925,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $14,774,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AK 2](1) [46628F BL
DEFINED HEREIN) 4](2) [46628F BM 2](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AK22](1)
[US46628FBL40](2) [US46628FBM23](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026020433](1)
[026013631](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: P-[--]
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $14,774,000
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(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class P Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS Q
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $14,775,000
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AP 1](1) [46628F AG
DEFINED HEREIN) 6](2) [46628F BU 4](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AP19](1)
[US46628FAG63](2) [US46628FBU49](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026013798](1)
[026013712](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: Q-[--]
OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $14,775,000
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class Q Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class Q
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class Q Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class Q Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: CAPMARK FINANCE INC.
ACCORDANCE WITH THE POOLING AND AND WACHOVIA BANK, NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $44,324,158
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48101 AL 0](1) [46628F BN
DEFINED HEREIN) 0](2) [46628F BP 5](3)
CLOSING DATE: JUNE 29, 2006 ISIN NO.: [USU48101AL05](1)
[US46628FBN06](2) [US46628FBP53](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 COMMON CODE NO.: [026020581](1)
[026013968](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: NR-[--]
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $44,324,158
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-LDP7 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THIS CERTIFICATE REPRESENTS AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101).
EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: CAPMARK FINANCE INC.
CERTIFICATE: 100% AND WACHOVIA BANK, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LNR PARTNERS, INC.
AGREEMENT: AS OF JUNE 1, 2006
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: JUNE 29, 2006 CERTIFICATE NO.: S-[--]
FIRST DISTRIBUTION DATE:
JULY 17, 2006
CLASS S PERCENTAGE INTEREST: 100%
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT LNR SECURITIES HOLDINGS, LLC
is the registered owner of the interest evidenced by this Certificate in the
Class S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-LDP7 and are issued in the
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Excess Interest and the
Excess Interest Distribution Account. Each Holder of this Certificate, by
acceptance hereof, agrees to treat, and take no action inconsistent with the
treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
the Excess Interest then distributable, if any, allocable to the Class S
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to Excess Interest
collected on the Mortgage Loans, all as more specifically set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account and the Distribution Accounts will be held on
behalf of the Trustee on behalf of the Holders of Certificates specified in the
Pooling and Servicing Agreement and each Master Servicer (with respect to its
related Certificate Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Accounts will be paid to the
applicable Master Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Accounts shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
The Class S Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer of this Certificate,
the Transferor shall reimburse the Trust for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-28
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE REGISTRAR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: CAPMARK FINANCE INC.
CERTIFICATE: 100% AND WACHOVIA BANK, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LNR PARTNERS, INC.
AGREEMENT: AS OF JUNE 1, 2006
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: JUNE 29, 2006 CUSIP NO.: [U48101 AM 8](1) [46628F BQ
3](2) [46628F BR 1](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 ISIN NO.: [USU48101AM87](1)
[US46628FBQ37](2) [US46628FBR10](3)
CLASS R PERCENTAGE INTEREST: 100%
CERTIFICATE NO.: R-[--]
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-LDP7 and are issued in the
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under Section 5.02(d) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicers,
the Paying Agent and the Certificate Registrar of any change or impending change
to such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class R Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-29
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-LDP7, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE REGISTRAR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: CAPMARK FINANCE INC.
CERTIFICATE: 100% AND WACHOVIA BANK, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LNR PARTNERS, INC.
AGREEMENT: AS OF JUNE 1, 2006
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: JUNE 29, 2006 CUSIP NO.: [U48101 AN 6](1) [46628F BS
9](2) [46628F BT 7](3)
FIRST DISTRIBUTION DATE:
JULY 17, 2006 ISIN NO.: [USU48101AN60](1)
[US46628FBS92](2) [US46625TBT75](3)
CLASS LR PERCENTAGE INTEREST: 100%
CERTIFICATE NO.: LR-[--]
--------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP7, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-LDP7 and are issued in the
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under Section 5.02(b) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class LR
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicers,
the Paying Agent and the Certificate Registrar of any change or impending change
to such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class LR Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class LR Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Paying Agent, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicers, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 29, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: __________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every particular
without alteration or enlargement or
any change whatever.
_________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
Loan # Mortgagor Name
------------------------------------------------------------------------------------------------------------------------------------
1 Centro Enfield LLC, Centro Westland LLC, Centro West Park LLC, Centro Midway LLC, Centro Eagle Rock LLC
1.01 Centro Enfield LLC, Centro Westland LLC, Centro West Park LLC, Centro Midway LLC, Centro Eagle Rock LLC
1.02 Centro Enfield LLC, Centro Westland LLC, Centro West Park LLC, Centro Midway LLC, Centro Eagle Rock LLC
1.03 Centro Enfield LLC, Centro Westland LLC, Centro West Park LLC, Centro Midway LLC, Centro Eagle Rock LLC
1.04 Centro Enfield LLC, Centro Westland LLC, Centro West Park LLC, Centro Midway LLC, Centro Eagle Rock LLC
1.05 Centro Enfield LLC, Centro Westland LLC, Centro West Park LLC, Centro Midway LLC, Centro Eagle Rock LLC
2 BFPRU I, LLC
2.01 BFPRU I, LLC
2.02 BFPRU I, LLC
3 Bella Terra Associates, LLC
4 CTTWB Associates, LP
5 Xxxxxxx of Oklahoma City, LLC, Xxxxxxx of Lincoln, LLC, Xxxxxxx of South Carolina, LLC, Xxxxxxx of New
Mexico, LLC, Xxxxxxx of Sioux Falls, LLC, Xxxxxxx of Tulsa, LLC
5.01 Xxxxxxx of Oklahoma City, LLC, Xxxxxxx of Lincoln, LLC, Xxxxxxx of South Carolina, LLC, Xxxxxxx of New
Mexico, LLC, Xxxxxxx of Sioux Falls, LLC, Xxxxxxx of Tulsa, LLC
5.02 Xxxxxxx of Oklahoma City, LLC, Xxxxxxx of Lincoln, LLC, Xxxxxxx of South Carolina, LLC, Xxxxxxx of New
Mexico, LLC, Xxxxxxx of Sioux Falls, LLC, Xxxxxxx of Tulsa, LLC
5.03 Xxxxxxx of Oklahoma City, LLC, Xxxxxxx of Lincoln, LLC, Xxxxxxx of South Carolina, LLC, Xxxxxxx of New
Mexico, LLC, Xxxxxxx of Sioux Falls, LLC, Xxxxxxx of Tulsa, LLC
5.04 Xxxxxxx of Oklahoma City, LLC, Xxxxxxx of Lincoln, LLC, Xxxxxxx of South Carolina, LLC, Xxxxxxx of New
Mexico, LLC, Xxxxxxx of Sioux Falls, LLC, Xxxxxxx of Tulsa, LLC
5.05 Xxxxxxx of Oklahoma City, LLC, Xxxxxxx of Lincoln, LLC, Xxxxxxx of South Carolina, LLC, Xxxxxxx of New
Mexico, LLC, Xxxxxxx of Sioux Falls, LLC, Xxxxxxx of Tulsa, LLC
5.06 Xxxxxxx of Oklahoma City, LLC, Xxxxxxx of Lincoln, LLC, Xxxxxxx of South Carolina, LLC, Xxxxxxx of New
Mexico, LLC, Xxxxxxx of Sioux Falls, LLC, Xxxxxxx of Tulsa, LLC
6 Macerich Salisbury B LLC
0 XXX Xxxxx Xxxxxx, LLC
8 Four Penn Center Owner LLC
9 Gardens SPE II LLC
10 Penn Tower, LLC
11 NNN 000 Xxxx Xxxxxxxxx, LLC; NNN 000 Xxxx Xxxxxxxxx (2-7,9-12,14-26,28-36), LLC
12 Xxxxxx 7, LLC, Mission Real Associates LLC, Wilshire Xxxxx Holdings LLC, Civic Palm LLC and Bunwil Capital LLC
13 Ari-Shoreview Corporate Center, LLC
14 KOLA Investments, L.L.C.
14.01 KOLA Investments, L.L.C.
14.02 KOLA Investments, L.L.C.
14.03 KOLA Investments, L.L.C.
14.04 KOLA Investments, L.L.C.
14.05 KOLA Investments, L.L.C.
15 XXX-Xxxxxx Ferry Office Park, LLC
16 Citation Club I LLC and Citation Club II LLC
17 MECW, LLC
17.01 MECW, LLC
17.02 MECW, LLC
17.03 MECW, LLC
17.04 MECW, LLC
18 CRP Holdings B, L.P.
19 Fireside West of Delaware LLC
20 Bensalem 11, LLC
00 Xxxxxxx Xxxxxxx (X Xxxxxx) Investors, LLC; Xxxxxxx Capital (Q Street) Investor (1-9)(11)(13-15)(17-20), LLC
21.01 Xxxxxxx Capital (Q Street) Investors, LLC
21.02 Xxxxxxx Capital (Q Street) Investors, LLC
22 Universe at Temecula Park, LLC
23 Linden Plaza, LLC
24 Fifth/Xxxxx Associates, L.P.
25 Sagamore Partners, Ltd.
26 Jupiter Festival, Ltd.
27 Fourth Seattle Hotel Associates, L.P.
28 Xxxxxx Diablo MOT LLC
29 Inland Western Sugar Land Colony Limited Partnership
30 WRT-550/650 Corporetum Property LLC and WRT-701 Arboretum Property LLC
31 IMT Desert Palm II LLC
32 Xxxxxx Structures LLC
33 RT Waca Hotels L.P.
33.01 RT Waca Hotels L.P.
33.02 RT Waca Hotels L.P.
34 Westgate Investors, LLC
35 FT-Ontario Property LLC and FT-Ontario Parking LLC
00 Xxxxxxxxx Xxxxxxxx at Mt Laurel LLC
37 101 Redwood Shores, LLC
38 HR Financing, LLC and HRVC Financing, LLC
39 RT SD-Denver, X.X.
00 XXXX XXX Cardel Sawgrass, LLC
41 FTRC Hotel Partners, L.P.
41.01 FTRC Hotel Partners, L.P.
41.02 FTRC Hotel Partners, L.P.
42 Miami Convention Hotel Corp.
43 FR Net Lease Co-Investment Program 1, LLC
44 Vista Investments, LLC
45 Coral Palms Naples Apartments LLC
46 1100 Carnegie, LLC
47 FR Net Lease Co-Investment Program 4, LLC
48 Autumn Ridge Xxxxx-A, LLC; Autumn Ridge Xxxxx-B, LLC; Autumn Ridge Xxxxxx, LLC; Xxxxxx Xxxxx Xxxxxxx-A,
LLC; Autumn Ridge Xxxxxxx-B, LLC; Autumn Ridge Xxxxxxxx, LLC; Xxxxxx Xxxxx Xxxxxx, LLC; Xxxxxx Xxxxx
Chuan, LLC; Autumn Ridge Xxxxxx, LLC; Xxxxxx Xxxxx
49 18th St. Atrium LLC
50 Xxxxx Crossing 1031, L.L.C.
51 CC Financing, LLC
00 XXX Xxxxxxxx Xxxxx Xxxxxxxx, LLC and CLF Noria Road Xxxxxxxx LLC
53 DSVC Financing, LLC
54 DIBH Rambler's Rest, LLC; Rambler's Rest, LLC
55 RLJ Beachwood Hotel, LLC
56 FR Net Lease Co-Investment Program 3, LLC
57 Largo Xxxxx SPE LLC
58 Xxxxxx'x Landing Apartments, LLC
59 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.01 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.02 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.03 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.04 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.05 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.06 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.07 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.08 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.09 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.10 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.11 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.12 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.13 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.14 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.15 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.16 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.17 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.18 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.19 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.20 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.21 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.22 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.23 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.24 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.25 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.26 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.27 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; OMGM DG, LLC
59.28 HMDG, LLC; XX Xxxx, LLC; Them & Us, LLC; Dough Re Me, LLC; HM Capital, LLC; XXXX XX, XXX
00 00000 Xxxxxxxxx Highway LLC, 00000 Xxxxxx Xxxx Xxxx XXX, 00000 Xxxxxx Road LLC, 00000 Xxxxx Xxxx LLC, 23
Mile Day Care LLC, Xxxxxxxxxx Professional LLC
60.01 43740 Xxxxxxxxx Highway LLC, 00000 Xxxxxx Xxxx Xxxx XXX, 00000 Xxxxxx Road LLC, 00000 Xxxxx Xxxx LLC, 23
Mile Day Care LLC, Xxxxxxxxxx Professional LLC
60.02 43740 Xxxxxxxxx Highway LLC, 00000 Xxxxxx Xxxx Xxxx XXX, 00000 Xxxxxx Road LLC, 00000 Xxxxx Xxxx LLC, 23
Mile Day Care LLC, Xxxxxxxxxx Professional LLC
60.03 43740 Xxxxxxxxx Highway LLC, 00000 Xxxxxx Xxxx Xxxx XXX, 00000 Xxxxxx Road LLC, 00000 Xxxxx Xxxx LLC, 23
Mile Day Care LLC, Xxxxxxxxxx Professional LLC
60.04 43740 Xxxxxxxxx Highway LLC, 00000 Xxxxxx Xxxx Xxxx XXX, 00000 Xxxxxx Road LLC, 00000 Xxxxx Xxxx LLC, 23
Mile Day Care LLC, Xxxxxxxxxx Professional LLC
60.05 43740 Xxxxxxxxx Highway LLC, 00000 Xxxxxx Xxxx Xxxx XXX, 00000 Xxxxxx Road LLC, 00000 Xxxxx Xxxx LLC, 23
Mile Day Care LLC, Xxxxxxxxxx Professional LLC
60.06 43740 Xxxxxxxxx Highway LLC, 00000 Xxxxxx Xxxx Xxxx XXX, 00000 Xxxxxx Road LLC, 00000 Xxxxx Xxxx LLC, 23
Mile Day Care LLC, Xxxxxxxxxx Professional LLC
61 Food Circus of Red Bank, Inc., Food Circus of Wall, Inc.
61.01 Food Circus of Red Bank, Inc., Food Circus of Wall, Inc.
61.02 Food Circus of Red Bank, Inc., Food Circus of Wall, Inc.
62 GVSC L.P.
63 1091 Calcot, LLC
64 Xxxxxxx-Xxxxx Hillsboro Holdings, LLC and Xxxxxxxx Hillsboro Holdings, LLC
65 Inland American Malden, L.L.C.
66 ASR 2401 Fountainview, LP
67 Xxxxxxx, LLC
68 Four C's III, LLC; Wallkill Center, LLC
69 Olivet Church 1031, L.L.C.
00 Xxxxxxx Xxxx Xxxxx, Ltd.
71 176 Holdings, LLC
00 Xxxxxxxxx Xxxxxx Acquisition, LLC
00 Xxxxxx Xxxx Xxxxxxx Flex Buildings, LLC
74 Liberties Walk Associates, LP
75 RT CO Hotel Partners LLC
76 VC Financing, LLC
77 Remby Investments, LLC
00 Xxxxxx Xxxxxx, LLC
79 Inland American Xxxxxxxxxx, X.X.X.
00 Xxxxxx Xxxx Xxxxxxxx, XX
00 Xxxxxxx Xxxxxxx, X.X.
00 Xxxx/Xxxx XX, Ltd.
00 Xxxxxx Xxxx Site Center, LLC
84 Xxxxxxx Capital (Shellmound) Investors, LLC
85 NK-850/950 Corporetum Property LLC
86 Knoxville Hotel Hospitality, LLC
87 Ship Certain, LLC
88 Chicago Title Land Trust Co. (Trust No. 52842)
89 Casita Real Estate L.L.C.
00 XxxxXxx Xxxxxxxxxx XX, LLC
91 Inland Western San Antonio HQ Limited Partnership
92 VR Foxborough Limited Partnership
93 FR Net Lease Co-Investment Program 2, LLC
94 Melrose Enterprises, LLC
95 Fiesta Grande RV I, LLC and Fiesta Grande RV II, LLC
96 Galleria Apartments, LLC
97 Pepperwood, L.L.C.
98 Bar Lazy H Three LLC
99 Inland American Framingham, L.L.C.
100 Sagres 1B2 LLC
101 EC Highland LLC and D&Y Xxxx Arizona LLC
102 Xxxxxx Heatherbrae LLC; Xxxxxxx Heatherbrae LLC; GM Heatherbrae II, LLC; Strong Heatherbrae LLC; WC
Heatherbrae LLC; J Xxxxxxx Heatherbrae LLC; D Redding Heatherbrae LLC; S Xxxxxx Heatherbrae LLC; M
Xxxxxx Heatherbrae LLC; Ratzlaf Heatherbrae LLC; Shim Heatherbrae LLC; Taila Heatherbrae LLC; Forester
Heatherbrae LLC
103 Cobblestone Acquisition, LLC
104 RLJ Colorado Springs Hotel, LLC
000 Xxxxx Xxxxx Capital Group, LLC and Xxxxxxx Investors, Ltd.
000 Xxxxx Xxx Xxxxxx, XXX
000 XX Venture, LLC
000 Xxxxx Xxxxxx Xxxxxx, LLC
109 Inland American Bristol, L.L.C.
110 Northwood Domit Apartments, Ltd.
000 Xxxxxxx Xxxxx, L.L.C.
112 GAC Development LLC
113 Former TCHR LLC
114 428 Associates, L.P.
115 Temehqula Enterprises, L.P.
000 Xxxxxx Xxxxxx Xxxxxxxx XXX
000 Xxxxxxxx Xxxxxxx Retail Investors LLC
118 Domit Investment Group, L.L.C. & 5 Points West Shopping City, L.L.C.
119 Colony Mobile Home Park, L.P.; Tropical - Dull, LLC; 0000 Xxxxxxxxx Realty Co., LLC
000 Xxxxxxxxxxxx Xxxxxxxxxx X.X.X.
000 Xxxxxxxxx Corner Investors, Ltd.
122 IC U.S.A. No. 11 Property Limited Partnership
123 G.F.C. Encino Associates, LLC
124 Camellia Tower, L.L.C.
125 2025 Frontis Plaza, LLC; Frontis TIC (1-9), LLC
126 Roosevelt Partners, Ltd.
127 DIHV Venture In, LLC and Venture In RV-MHC, LLC
128 Arbor Village Investments, L.L.C.
000 Xxx Xxxxxx Xxxxxxxxxx, X.X.X.
000 Xxxxxxx Xxxx Associates, LLC
000 XXXXX Xxxxxxx Xxxx, X.X.X.
132 Coast Business Center, Ltd.
133 Kapree Trinity, LLC
134 000 Xxx Xxxxxxxx, LLC
135 GNP Group of Pineville, LLC
136 B&R 9950 Westpark Owner, LP
000 Xxxxxxx Xxxxxxxxxx, LLC
000 Xxxxx Xxxxx Xxxx Properties, LLC
139 Coeur d'Alene Center, LLC
140 Xxxxx Associates, LLC
141 840 Xxxxxxx Associates LLC
142 Xxxxxx Associates I LLC
143 FR Net Lease Co-Investment Program 5, LLC
144 2001 Associates
145 RT-Las Colinas Associates, L.P.
146 Signature Center, L.P.
147 Storage Max Northtown, L.L.C.
148 550 West B Investors, LLC and 550 Xxxxxxx Investors, LLC
149 4801 Congress LLC
150 Self Storage of Walnut Creek, LLC
151 Chanhassen Xxxxxx LLC
152 Fairwind Apts. LP
153 MMV, L.P.
154 Self Storage LLC
154.01 Self Storage LLC
154.02 Self Storage LLC
154.03 Self Storage LLC
154.04 Self Storage LLC
155 WHV Partners, L.P.
156 Xxxxx Enterprises Pearland, LP
157 280 Business Center, LLC
000 Xx. Xxxxx Xxxxxxxxxxxxx, Ltd.
159 Capri RV, LLC
160 Xxxxxxx/Lomas, LLC
000 Xxxx Xxx Xxxxx, X.X.
162 Arbaugh Lessor LLC
000 Xxxxxx Xxxxxxx Park, LLC
164 Riverside Associates, L.L.C.
165 Inlet Oaks MHP, LLC
000 XXX-Xxxx Xxxxxx, LLC
167 Lone Ranger, LLC
168 Olympia Partners, LLC
169 York/Street Associates L.P. and Evergreen Avenue Associates L.P.
170 119 Xxxxxx Mill Road, LLC
171 RPS Group, LLC
172 WFS-Xxxxxxx, LLC
000 Xxxxxxxx Xxxx Apartments 1, LLC
000 Xxxxxxxxxxx Xxxxxxxxxxxx Xxxxx, XXX, Xxxxx Properties 8 LLC
175 WVN, LLC
176 RR Hotel Investment, Ltd.
000 XXX Xxxxx Xxxx, LLC
178 Long Lake Properties, LLC; Xxxxxx & Xxxxx, LLC
179 StorageMax Midtown, LLC
180 Xxxxx, LLC
181 Fort Xxxx Limited Partnership
181.01 Fort Xxxx Limited Partnership
181.02 Fort Xxxx Limited Partnership
182 Gem Kennewick, LLC
183 Noah, LLC
184 Rangeline Commercial Park, Inc.
185 000 Xxxxxxxxxx Xxxxx Associates, LLC
000 Xxxxxxx Xxxxxx R.V. Park, LLC
187 Mexwest, LLC
000 Xxx Xxxxxxxx Xxxxxx Xxxxxxx, Ltd.
189 Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx
190 Pasadena Design Center, LLC
000 Xxxxxxxx Xxxxxx Xxxxxxx Limited Partnership
000 Xxxxxxxxxxx Xxxxxxxxxx, X.X.X.
193 Lone Star Self Storage - Xxxxxxx Road, Ltd.
194 Rancheria MHP, LLC
195 Xxxxxxxx IV, L.P.
196 DBSI Highlander LLC, Xxxxx-Highlander LLC, Fifth Street Ventures-Highlander LLC, Xxxxxxxx-Highlander
LLC, Xxxxx-Highlander LLC, X. Xxxxx-Highlander LLC, Haren-Highlander LLC, X. Xxxxx-Highlander LLC,
Highlander Jac-Highlander LLC, Xxxxxx-Highlander LLC, Xxxxx-Highlander LLC, Xxxxxxxx-Highlander LLC,
Xxxx-Highlander LLC, Xxxxxx-Highlander LLC, Xxxxxx-Highlander LLC, Michopoulos-HIghlander LLC,
Xxxxxx-Highlander LLC, Xxxxxxxxx-Highlander LLC, PFSH-Highlander LLC, Xxxxxxx-HIghlander LLC,
Xxxxxxxx-HIghlander LLC, Xxxxxxxx-Highlander LLC, Xxxx-Highlander LLC, Sinker-Highlander LLC,
Xxxxxxxx-Highlander LLC, Sumerlea-Highlander LLC
000 Xxxxxxxx-Xxxxx Xxxxxx, LLC
198 Inland Western Hellertown Main Street DST
199 Inland Western Lebanon 0xx Xxxxxx XXX
000 Xxxxx Xxxxx Apartments LLC
201 Coventry Partners, LLC, TDO Properties, LLC, Fortune Pathway, LLC, Coventry 326, LLC, Coventry Group
100, LLC, Piedmont Group Real Estate, LLC, PDJJ, LLC, Acclivity, LLC, CF Assets Huntsville, LLC, BHT
Investments, LLC, Amansara Holdings, LLC, Affordable Housing Alliance, LLC, 4 - Properties, LLC, Ohana
Coventry 2, LLC, XXX Huntsville, LLC, JJC Huntsville, LLC and DEM Huntsville, LLC
202 Inland Western Punxsutawney Xxxxxxxx Xxxxxx XXX
000 Xxxx - XXXXX Center, LLC
204 Xxxxxx Xxxxx Associates, Ltd.
205 Neshonoc, LLC
000 XXX Xxxx Xxxxxxxx LLC
207 Land Trust Service Corporation and CV Partners of Orlando Family Limited Partnership
000 Xxxxxxx'x Xxxxxx Management LLC and Xxxxx Mariner's Investment LLC
209 Xxxxx Xxxxx Shops, LLC
000 Xxxxxxxx Xxxxxxxx, LLC
211 Riverwind Investments, LLC
212 Continental Retail Center, LLP
213 Plaza 18, L.P.
214 Xxxxxxxx Xxxxx, A Limited Partnership
000 Xxxxxx Xxxxxx, LLC
216 EMF Properties Georgia, LLC
217 Sun Valley, LLC
218 Garland Retail, LLC
219 N368AG, LLC
220 Camarillo Motels, LLC
221 StorageMax Xxxxx, LLC
222 Colony 2006, LP
223 Little Xxxxx Mobile Villa LLC
224 Xxxxxxxxxx Village Apartments, LLC
225 Maino Storage No. 2, L.L.C.
226 Maino Storage Xx. 0, X.X.X.
000 Xxxxxxxxx Xxxx XX, LLC
228 Xxxxxx Crossroads Investments, Inc.
229 T.J. Team Investment Co., LLC
000 Xxxxxxx Xxxxxxx, Ltd.
231 Casita Verde RV, LLC
232 Crossgates Storage Park, LLC
233 Casa Grande-Southwick Apartments, LLC
233.01
233.02
000 Xxxxxxxxxx Xxxxx LLC
235 High Chaparral Properties, LLC
236 Talon-Safeway LP
237 Xxxxxx, LLC
238 224 HM Group I, LLC; 224 HM Private Investor (I-XV), LLC; 224 HM Master Lessee, LLC
239 DMPlaza LLC
240 9075 SM, LLC
000 Xxxxxx Xxxxx Xxxxxxxx Xxxx L.P.
242 Petersburg BL, LLC
243 XX Xxxxxx LLC
244 Crestview Partners, L.P.
245 Little Chief Minit Markets, Inc.
245.01
245.02
246 StorageMax Tupelo 2, LLC
247 Xxxx X. Xxxxxxxx Investments, LLC
248 Xxxxxx MHP, LLC
248.01 Xxxxxx MHP, LLC
248.02 Xxxxxx MHP, LLC
249 00 Xxxx Xxxx LLC
000 Xxxxxxxxx Xxxxxxx, L.P.
251 Green Pastures, Inc.
252 Clinton/SM, LLC
253 4878 Realty, Inc.
254 StorageMax Clinton Two, LLC
255 Rinkoff Rice Village, L.P.
256 Gallacher Enterprises, L.C.
257 GHL2, LLC
258 Parasol Properties, L.P.
259 Heard and Heard Two, LLP
260 Kingsridge Park, LLC
261 Summit Downtown Partners, L.L.C.
262 AMA Camp Bowie, Ltd.
263 VDN Azle, LP
264 StorageMax Clinton, LLC
265 D & K Management II, LLC
266 Pacifico Mobile Home Park LLC
000 Xxxxxxxxxx Xxxxxx, LLC
268 Houston Towers LLC
269 R&R Communities, LLC
Loan # Property Address
------------------------------------------------------------------------------------------------------------------------------------
1 Various
1.01 0000 Xxxxxx Xxxx
1.02 00 Xxx Xxxxxx
1.03 000 Xxxx Xxxx Xxxx Xxxxx
1.04 2700 and 0000 Xxxxxxxx Xxxxxxxxx
1.05 00000-00000 Xxxx Xxxxxx Xxxxxx
2 Various
2.01 000 Xxxx Xxxxxxxx Xxxxxx
2.02 000 Xxxxx Xxxxxxx Xxxxxx
3 0000 Xxxxxxx Xxxxxx
4 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx
5 Various
5.01 0000 X Xxxxxx
5.02 0000 Xxxxx 000xx Xxxx Xxxxxx
5.03 0000 Xxxxxxxx Xxxxx XX
5.04 0 Xxxx Xxxx Xxxxxx
5.05 0000 Xxxxx Xxxx Xxxxxx
5.06 0000 Xxxxxxxxxxxxx Xxxxxxxxx
6 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
7 21500 Pacific Coast Highway
8 1600 Xxxx X. Xxxxxxx Xxxxxxxxx
0 00000 Xx Xxxxx
10 000 Xxxx 00xx Xxxxxx
00 000 Xxxx Xxxxxxxxx
12 00000 Xxxxxxxx Xxxxxxxxx
13 0000 Xxxxxxxxx Xxxxxx, 0000 Xxxxxxx Xxxx and 1020, 1050 and 1080 County Road F
14 Various
14.01 0000 Xxxxxxxxx 000xx Xxxxxx
14.02 0000 Xxxxxxxx Xxxx Xxxxx
14.03 0000 Xxxxxxxxx 000xx Xxxxxx
14.04 0000 Xxxxxxxxx 000xx Xxxxxx
14.05 000 Xxxx 00xx Xxxxxx
15 6151, 6190 & 0000 Xxxxxx Xxxxx Xxxx
16 00000 Xxxxxxxx Xxxxxx
17 Various
17.01 One Corporate Xxxxx Drive
17.02 3100 Corporate Xxxxxxxx Xxxxx
00.00 00000-00 Xxxxx Xxxxx
17.04 00000-00 Xxxxx Xxxxx
18 0000 Xxxx Xxxxxxx Xxxx
19 3003 Corporate Xxxx Xxxxx
00 0000 Xxxxxxx Pike
21 Various
21.01 0000 X Xxxxxx
21.02 0000X Xxxx Xxxxxxx
00 00000 Xxxxxx Xxx
23 0000 Xxxx Xxxxx Xxxx
24 000 XX Xxxxxxxxxx Xxxxxx
25 0000 Xxxxxxx Xxxxxx
00 000 Xxxxx XX Xxxxxxx 1
27 1101 0xx Xxxxxx
00 0000 Xxxxx Xxxxxx Xxx
29 16510-16762 Southwest Freeway
30 550, 650 and 000 Xxxxxxxxxxx Xxxx
31 1215 East Vista Del Xxxxx Xxxxx
00 0000-0000 Xxxxxxxxx, 3212-3232 Xxxxxxxx Xxxxxx, 0000 Xxxxxxx Xxxxxxxxx
33 Various
33.01 00 Xxxx Xxxxxxx Xxxx
33.02 0000 Xxxx Xxxx Xxx
34 8800 Veterans Memorial Boulevard
00 Xxx Xxxx Xxxx xxx Xxx Xxxx Xxxxxxx
36 0000-0000 Xxxxxxxx Xxxxxx
37 000 Xxxxxxx Xxxxxx Xxxxxxx
38 0000-0000 Xxxxxxxx Xxxx
39 0000 Xxxxxx Xxxx Xxxx
40 00000 Xxxx Xxxxxxx Xxxxxxxxx
41 Various
41.01 0000 Xxxxx Xxxxx Xxxx
41.02 0000 Xxxxxxxxxx Xxxx
42 000 Xxxxxxxxx 0xx Xxxxxx
43 2002 South 5070 West
44 0000 Xxxx Xxxxxx and 1301-1331 Xxxxxxx Xxxxxx
00 0000 Xxxxx Xxxxx Xxxx
46 0000 Xxxxxxxx Xxxxxx
47 00000 00xx Xxxxxx Xxxxx
48 0000 Xxxxxxxxx Xxxxx
49 0000 Xxxxxxx Xxxxxx
50 3190 South Central Expressway
51 0000 Xxxxxxxx Xxxxxxxx Xxxxx
52 0000 Xxxxx Xxxx & 0000 Xxxxxxxx
53 0000 Xxxxxx Xxxx Xxxxx
54 0000 Xxxxx Xxxxx Xxxx
55 0000 Xxxx Xxxx Xxxxx
56 0000 Xxxxxxxx Xxxxx
57 00 Xxxxxx Xxxx
00 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxx
59 Various
59.01 0000 Xxxxxxxxx Xxxx
59.02 000 Xxxxxxx Xxxx Xxxxx
59.03 0000 Xxxxxxxxx Xxxx
59.04 0000 Xxxxx Xxxxxx
59.05 000 0xx Xxxxxx
00.00 0000 XX Xxxxx 133
59.07 000 Xxxxx Xxxxxx
59.08 000 Xxxx Xxxxxx
59.09 00000 Xxxxxx Xxxxxx Northeast
59.10 0000 Xxxxxxxxx Xxxx
59.11 000 Xxxx Xxxx Xxxxxx
59.12 000 Xxxxxxx Xxxx
59.13 0000 Xxxx Xxxxx Xxxxxx
59.14 000 Xxxx Xxxx Xxxxxx
59.15 000 Xxxx Xxxx Xxxxxx
00.00 0000 Xxxxxx Xxxx
59.17 00000 Xxxxxxx Xxxx
59.18 000 Xxxxxxxx Xxxxxxx
59.19 0000 Xxxxx Xxxxx 0
59.20 0000 Xxxxxxxx Xxxx
59.21 0000 Xxxxxxxx Xxxx
59.22 000 Xxxx Xxxxxx Xxxxxx
59.23 000 Xxxx Xxxxxxxx Xxxxxx
59.24 00000 Xxxxx Xxxxx 00
59.25 00000 Xxxx Xxxx Xxxxxx
59.26 00 Xxxx Xxxxxxx Xxxxxx
59.27 0000 Xxxxxx Xxxxxx
59.28 00 Xxxxx Xxxx Xxxxxx
60 Various
60.01 00000 Xxxxx Xxxx
60.02 00000 Xxxxxxxxx Xxxxxxx
60.03 00000 00 Xxxx Xxxx
60.04 00000 00 Xxxx Xxxx
60.05 00000 Xxxxxx Xxxx
60.06 30117 Xxxxxxxxxx Xxxx
00 Various
61.01 000 Xxxxx Xxxxxx
61.02 18th Avenue and Xxxxx 00
00 000 Xxxx XxXxxxx Xxx
63 1091 Calcot Place
64 5345 & 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx
65 00 Xxxxxxx Xxxxxx
66 0000 Xxxxxxxxxxxx Xxxxx
67 9420 & 9475A & B Briar Xxxxxxx Xxxxx
00 000-000 Xxxxxx Xxxx
69 0000 Xxxxxxxxxxx Xxxx
70 0000 Xxxxxx Xxxx Xxxx
71 000 Xxxxxxx Xxxxxx
72 00000 Xxxx Xxxxxx Road
73 00/00 Xxxxxx Xxxx Xxxxxxx
74 0000-00 Xxxxx Xxxxxx Xxxxxx & 0000-00 Xxxxx Xxxxxxxx Xxxxxx
75 00 Xxxx Xxxxxxxxxx Xxxxxxxxx
76 5485 Xxxxxx'x Xxxx Xxxx
00 00000 Xxxx Xxxxxxxxxxxx Boulevard
78 0000 Xxxxxxxxx Xxxxxx
79 000 Xxxxxxxx Xxxx
80 0000 Xxxx Xxxx
81 660 G Xxxxxx
00 XXX Xxxx Xxxxxx & Xxxx Road
83 8986-8988 Xxxxxx Xxxxxxx Xxxxxxxxx
00 0000 and 0000 Xxxxxxxxxx Xxxxxx
85 850 and 000 Xxxxxxxxxxx Xxxx
86 000 Xxxxxxxxx Xxx
87 000 Xxxx Xxxxx Xxxxxxx
88 0000 Xxxxx Xxxxxx Xxxxxx
89 0000 Xxxx Xxxxxxxxxx Xxxxx
90 00 Xxxxxx Xxxx
00 0000 XX Xxxx 410
92 1400 Esters Road
93 0000 Xxxxxxx Xxx Xxxxx
94 0000-0000 Xxxxxxx Xxxxxx
95 0000 Xxxx Xxxxxxxx Xxxxxxxxx
96 10011 South Xxxxxxxx Xxxx
00 0000 Xxxxxxxxxx Xxxxx
98 1235 Town Xxxxxx Xxxxx
00 0000 Xxxxxxxxx Xxxx
100 00-00 00xx Xxxxxx
000 0000 Xxxx Xxxxxx Road
102 10303 Southeast Xxxx Xxxxxx
000 000 Xxxx Xxxx Xxxxxx
104 0000 Xxxxxxxxx Xxxxxxx
105 0000 Xxxx Xxxxxx Xxxx
106 0000 Xxxxx Xxxxx Xxxx
000 00-000 Xxxxxx Street
108 0000 Xxxxxxx Xxxxxxx
109 000 Xxxxxxx Xxxxxx
110 000 Xxxx Xxxxxxxx Xxxxxx
111 1468 Xxxxxxx Xxxxxx
000 000 Xxxxx Xxxxxxxx
113 3506-3520 Xxxx Xxxxxx Xxxxx
000 000 X Xxxxxx
115 000 Xxxxxxxxx Xxxxx
116 4400 East 00xx Xxxxxx
000 000 Xxxxx Xxxxx Xxxx
118 0000 Xxxxxxxx Xxxx
119 00000 Xxxxxxx Xxxxx
120 0000 Xxxx 00xx Xxxxxx
121 20050 Highway 00 Xxxxx
000 0000-0000 Xxxxx Xxxxxx Avenue
123 15945 Xxxxxxx Xxxxxxxxx
000 0000 Xxxxxxxx Xxxxxxxxx
125 2025 Frontis Xxxxx Xxxxxxxxx
000 0000-00 Xxxxxx Xxxxxx
127 000 Xxxxx Xxxxx Xxxx
128 0000 Xxxxx Xxxxxxx Xxxxxx
129 000 Xxxxx Xxxxxx
130 1352 Marrows Road
131 0000 Xxxxx Xxx Xxxxxx
132 0000 Xxxx Xxxxx Xxxxxxx
133 7990 Xxxxxxx Xxxx
000 000 Xxxxx Xxx Xxxxxxxx
135 000 Xxxxx Xxxxxx Xxxxxxxxx
136 0000 Xxxxxxxx Xxxxx
137 13594 Xxxxxxx 0 Xxxxxxxx
000 000 Xxxxxxxxx Xxxx Xxxx
139 225 & 000 Xxxx Xxxxxxxx Xxxxxx
140 15, 19, 23 and 00 Xxxxxxxx Xxxxx
141 000 Xxxxxxx Xxxxxx
142 One Pathmark Plaza
143 2100 Highway 265
144 2001 Addison Street
145 820 West Xxxxxx Xxxx Xxxx
000 0000 Xxxxxx Xxxxxx
147 00 Xxxxxxxxx Xxxxx
148 000 Xxxx X Xxxxxx
149 4801 South Xxxxxxxx Xxxxxx
000 0000 Xxxxx Xxxx Xxxxxx
151 000 Xxxx 00xx Xxxxxx
152 15900 Space Center Boulevard
153 1438, 1440 and 0000 Xxxxx Xxxxxxx
154 Various
154.01 0000 Xxxx Xxxxx Xxxxxx
154.02 0000 Xxxxx Xxxxxxx Xxxxx Xxxx
154.03 000 Xxxxxxxxxxx Xxxx
154.04 4207 Montgomery Xxxxxxx
000 0000 Xxxxx Xxxxx
156 0000 Xxxxxxxx Xxxxxx
157 0000 Xxxxxxx Xxxxxx
158 0000 Xxxxxx Xxxxx Xxxxx
159 3380 South 0xx Xxxxxx
000 000 Xxxxx Xxxxx Xx Xxxxx
161 0000 Xxxx Xxxxxxxx Xxxxxx
162 000 Xxxxx Xxxxxxxxxx Xxxxxx
163 00000 Xxxxxxx Xxxxxx
164 000 Xxxxxx Xxxxxxx
000 0000 XX Xxxxxxx 17
166 2900 Xxxxxx Xxxxxx Parkway
167 000 Xxxxxx Xxxxxx
168 000 Xxxxxxx Xxxxx
169 000 Xxxx Xxxx
170 119 West Xxxxxx Xxxx Xxxx
000 0000 Xxxxx Xxxxxxx Street
172 0000 Xxxxx Xxxxxxx Xxxxx
173 000-000 Xxxxxxxx Xxxx Xxxxx
174 000 Xxxx Xxxxxxxxxx Xxxxx
175 7221 & 0000 Xxx Xxxx Xxxxxxxxx
176 000 Xxxx Xxx
177 3001-3027 University Avenue, 0000-0000 00xx Xxxxxx and 0000 Xxx Xxxxxx
178 4908-4972 Xxxx X Xxxx
000 0000 Xxxxxxxxxx Xxxxxx
180 1601 Eastcrest Drive
181 Various
181.01 0000 Xxxxxxx Xxxx
181.02 00000 Xxxx Xxxx
182 0000 Xxxx Xxxxxxxxxx Xxxxxx
183 6450 North Xxxxxxx Xxxxxxxxx
000 0000 Xxxxxxxxx Xxxx
185 000 Xxxxxxxxxx Xxxxx
000 000 Xxxxx Xxxxx Xxxxxx
187 000 Xxxx Xxxxxxx Xxxxxx
188 000 Xxxxxxx Xxxxxxxxx
189 000 Xxxxx Xxxxxxx Xxxxxx
190 00-00 Xxxxx Xxxxxx Xxxxxxx and 000-000 Xxxx Xxxxx Xxxxxx
191 3200 South 0xx Xxxxxx
192 000 Xxxxxxx Xxxx
193 3500 Xxxxxx Drive
194 2502 & 0000 Xxxxx 00xx Xxxxxx
195 1281 Furukawa Way
196 000 Xxxxxxxxxx Xxxxxxxxx
197 14020 Pilot Xxxx Xxxx
000 000 Xxxx Xxxxxx
199 000 Xxxxx Xxxxx Xxxxxx
200 0000 Xxxxxx Xxxxx Xxxxx XX
201 0000 Xxxxxxxx Xxxxx XX
202 000 Xxxx Xxxxxxxx Xxxxxx
203 1609 North Xxxxx Xxxxxx
000 0000 Xxxxxxxx Xxxx
205 N5334 Xxxxxxxx Xxxx
000 0000 Xxxxxxxxx Pike
207 5475 West Irlo Xxxxxxx Memorial Xxxxxxx
000 0000 Xxxxxxx Xxxxxxxxx
209 17401 Bastanchury Road
210 3213 & 0000 Xxxx Xxxxxx
211 5900 Xxxxxxx Xxxx
000 0000 Xxxxxxxxx Parkway
213 0000 Xxxxxx Xxxxxx
214 000 Xxxxxxxxx Xxxxx
215 7558 Highway 73
216 11332-11346 Xxxx Xxxxxxxxx
000 0000 00xx Xxxxxx Xxxx
218 3315 North President Xxxxxx Xxxx Xxxxxxx
000 0000-0000 Coast Xxxxxxx Xxxx
000 000 Xxxx Xxxxx Xxxxx
221 5670 I-55 South, 000 Xxxxx Xxxxx, 0000 Xxxxxx Xxxx
000 0000 Xxxxx Xxxxxxx 6
223 1821 Lakeville Xxxxxxx
000 000 Xxxxx Xxxxx Xxxx
225 14015 Xxxxxxx Xxxxxxxxx
000 00000 Xxxxxxx Xxxxxxxxx
227 19501 West Hopi Drive
228 41 Aces Circle and 00 Xxxxx Xxx
229 11118 - 11150 Xxxx Xxxxx Xxxxxxxxx
000 0000 Xxxx Xxxxx Xxxxxx
231 2200 North Xxxxxxx Road
232 100 Westside Cove
233 Various
233.01 0000 Xxxxx Xxxx
233.02 0000 Xxxxxxxxxx Xxxx
234 0000 Xxxxxxxx Xxxxxxx, XX
235 7575 & 0000 Xxxx Xxxxxxxxx Xxxxx
236 0000 Xxxxx Xxxxxx Xxxxxx
237 000 Xxxxxx Xxxxxx Xxxxx
238 224 First Xxxxxx Xxxxx
000 00000 Xxxx Xxxx
240 9075-9077 Xxxxx Xxxxxx Xxxxxxxxx
000 0000 Xxxx XX Xxxxxxx 80
242 3600 South Crater Road
243 000 Xxxx Xxxxxx Xxxxxx
244 0000-0000 Xxxxxxxxx Xxxxx
245 Various
245.01 0000 00xx Xxxxxx Xxxxx
245.02 0000 00xx Xxxxxx Xxxxx
246 0000 XxXxxxxxxx Xxxxxxxxx
247 5815 Xxxx Xxxx
000 Various
248.01 000 Xxxxxxx Xxxx
248.02 0000 Xxxxxxx Xxxx
249 73 Xxxx Road
250 1725 Xxxxxxxx Xxxxx
000 000-000 Xxx Xxxxxxxxxxxx Road
252 0000-0000 Xxx Xxxxxxxxx Xxxxx Xxxx
253 4878 Xxxxxx Xxxx Xxxx
000 000 Xxxxxxxxxxx Xxxx
255 2445 Times Boulevard
256 0000 Xxxxxxxxxxx Xxxx
257 0000 Xxxx Xxxxxx
258 000 Xxxxx Xxxx Xxxxxx
259 2830 North Xxxx Xxxxxx
000 0000 Xxxxxx Xxxx
000 0-00 Xxx Xxxxxx
262 4603-4605 Camp Xxxxx Xxxxxxxxx
000 000 Xxxx Xxxx
264 100 Woodchase Xxxx Xxxxx
000 0000 Xxxxxx Xxxxx Xxxx
266 0000 Xxxx Xxxxx Xxxxxx
267 0000 Xxxxxxx Xxxx
268 00000 Xxxxx Xxxx
000 00 Xxxxxxxxx Xxxx
Xxxx # Xxxx Xxxxx Xxx Xxxx Xxxxxx Property Name
------------------------------------------------------------------------------------------------------------------------------------
1 Various Various Various Various Westfield Centro Portfolio
1.01 Xxxxxx XX 00000 Lorain Westfield Midway
1.02 Xxxxxxx XX 00000 Hartford Westfield Enfield
1.03 Cape Xxxxxxxxx XX 00000 Cape Westfield West Park
Girardeau
1.04 Xxx Xxxxxxx XX 00000 Los Angeles Xxxxxxxxx Xxxxx Xxxx
0.00 Xxxxxxxx XX 00000 Jefferson Xxxxxxxxx Xxxxxxxx Xxxx Xxxxxx
0 Xxxxxxx XX 00000 Xxxx Xxx & Xxx Xxxxxxxxxx Xxxxx
0.00 Xxxxxxx XX 00000 Xxxx Xxx Xxxxxxxxxx Xxxxx
0.00 Xxxxxxx XX 00000 Xxxx Xxx Xxxxxxxxxx Xxxxx
0 Xxxxxxxxxx XX 00000 Orange Xxxxx Xxxxx Xxxxxx
Xxxxx
0 Xxxxxxxxxx XX 00000 District of 0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxx
5 Various Various Various Various JQH Hotel Portfolio
5.01 Xxxxxxx XX 00000 Lancaster Embassy Suites Lincoln
5.02 Tulsa OK 74133 Tulsa Renaissance Tulsa Hotel
5.03 Xxxxxxxxxxx XX 00000 Bernalillo Embassy Suites Albuquerque
5.04 Xxxxxxxx Xxxx XX 00000 Oklahoma Courtyard Marriott - Oklahoma City
5.05 Xxxxx Xxxxx XX 00000 Minnehaha Sheraton Sioux Falls
5.06 Xxxxx XX 00000 Charleston Xxxxxxxxx Xxx Xxxxxxxxxx
Xxxxxxxxxx
0 Xxxxxxxxx XX 00000 Wicomico Centre at Salisbury
7 Xxxxxxxxxx XX 00000 Orange Xxxxx - Xxxxxxxxxx Xxxxx
Xxxxx
0 Xxxxxxxxxxxx XX 00000 Philadelphia Four Xxxx Xxxxxx
0 Xxxx Xxxxxx XX 00000 Riverside The Gardens on Xx Xxxxx
00 Xxx Xxxx XX 00000 New York XxxxXxx Xxxxx
00 Xxxxxxxxx XX 00000 Milwaukee 000 Xxxx Xxxxxxxxx
00 Xxx Xxxxxxx XX 00000 Los Angeles Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
00 Xxxxxxxxx XX 00000 Xxxxxx Shoreview Corporate Center
14 Various OK Various Oklahoma Oklahoma City Portfolio
14.01 Xxxxxxxx Xxxx XX 00000 Oklahoma Invitational Apartments
14.02 Xxxxxxxx Xxxx XX 00000 Oklahoma Heritage Park Apartments
14.03 Xxxxxxxx Xxxx XX 00000 Oklahoma Raindance Apartments
14.04 Xxxxxxxx Xxxx XX 00000 Oklahoma Augusta Apartments
14.05 Xxxxxx XX 00000 Xxxxxxxx Xxxxxxxx Xxxxxxxxxx
00 Xxxxxxx XX 00000 Xxxxxx Xxxxxx Ferry Landing East
16 Xxxxxxxxxx XX 00000 Oakland Citation Club
Hills
17 Various MO Various Saint Louis K-V Pharmaceutical Portfolio
17.01 Xxxxxxxxx XX 00000 Saint Louis Xxx Xxxxxxxxx Xxxxx Xxxxx
00.00 Xxxxxxxxx XX 00000 Saint Louis 0000 Xxxxxxxxx Xxxxxxxx Xxxxx
00.00 Xxxxxxxx XX 00000 Saint Louis 00000-00 Xxxxx Xxxxx
Xxxxxxx
00.00 Xxxxxxxx XX 00000 Saint Louis 00000-00 Xxxxx Xxxxx
Xxxxxxx
00 Xxxxxxx XX 00000 Maricopa Xxx Xxxxxxxx
00 Xxxxx XX 00000 DuPage Xxxxxx - Xxxxx / Naperville
20 Xxxxxxxx XX 00000 Bucks Home Depot Plaza
21 Sacramento CA Various Sacramento GC Sacramento Office Portfolio
21.01 Xxxxxxxxxx XX 00000 Sacramento Q Street Sac
21.02 Xxxxxxxxxx XX 00000 Sacramento Parkway Sacramento
22 Xxxxxxxx XX 00000 Riverside Xxxxxx Xxxx Xxxxxxxxxx
00 Xxxxxx XX 00000 Union Xxxxxx Xxxxx
00 Xxxxxxxx XX 00000 Multnomah Xxxxx Xxxxxx Xxxxxx
00 Xxxxx Xxxxx XX 00000 Miami-Dade The Sagamore Hotel
26 Jupiter FL 33477 Palm Beach Shoppes at Jupiter
27 Xxxxxxx XX 00000 King Hotel Monaco
28 Xxxxx XX 00000 Maricopa Motorola Building Campus
29 Xxxxx Xxxx XX 00000 Xxxx Xxxx Xxxxxx - Xxxxxx Xxxxxx
00 Xxxxx XX 00000 DuPage 550, 650 and 000 Xxxxxxxxxxx Xxxx
Xxxxxxx
00 Xxxxx XX 00000 Maricopa Xxxxxx Xxxx Xxxxxxxxxx
00 Xxxxx Xxxxxx XX 00000 Los Angeles Commerce Park
33 Various Various Various Various Homewood Suites Portfolio #2 (AVR)
33.01 Xxx Xxxx XX 00000 Santa Xxxxx Xxxxxxxx Suites - San Xxxx
33.02 Xxxxxxx XX 00000 King Homewood Suites - Tukwila
34 Metairie LA 70003 Xxxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxx XX 00000 Xxxx Xxx Xxxxxxx Xxxxxxxxxx
00 Xxxxx Xxxxxx XX 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx
00 Xxxxxxx Xxxx XX 00000 San Mateo 000 Xxxxxxx Xxxxxx
00 Xxxxxxxx XX 00000 Xxxxxx Kimco Columbia- Xxxxxxx Xxxxx
00 Xxx Xxxxx XX 00000 San Diego Xxxxxxxxx Xxx - Xxx Xxxxx
00 Xxxxxxx XX 00000 Broward Crowne Plaza Sawgrass Xxxxx
41 Various Various Various Various Homewood Suites Portfolio #1 (AVR)
41.01 Xxxxxxxx XX 00000 Chatham Homewood Suites - Savannah
41.02 Xxxxxxxxxxxx XX 00000 Xxxxx Homewood Suites - Jacksonville
42 Xxxxx XX 00000 Miami-Dade Courtyard by Xxxxxxxx Xxxxx (XXX)
00 Xxxx Xxxx Xxxx XX 00000 Salt Lake Schiff Nutrition International
44 Xxxxxxxx XX 00000 Richland 0000 Xxxx Xxxxxx & Xxxxx Xxxxxx
00 Xxxxxx XX 00000 Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxxxx XX 00000 Cuyahoga Hilton Garden Inn - Gateway
47 Xxxxxxxx XX 00000 Hennepin Nilfisk Advance - MN
48 Xxxxxxx XX 00000 Wake Autumn Ridge Apts
49 Xxxxxx XX 00000 Denver 00 Xxxxxx Xxxxxx
00 XxXxxxxx XX 00000 Collin Inland - Xxxxx Xxxxxxxx
00 Xxxxxxxx XX 00000 Xxxxxx Kimco Columbia- Columbia Crossing
52 Xxxxxxxx XX 00000 Xxxxxxx Xxxxxxx PLC Building - Lawrence
53 Ellicot City MD 21042 Xxxxxx Kimco Columbia - Xxxxxx'x Village
54 Venice FL 34293 Sarasota ELS - Xxxxxxx'x Xxxx Xxxxxx
00 Xxxxxxxxx XX 00000 Cuyahoga Embassy Suites - Beachwood
56 Belcamp MD 21017 Harford Sephora Distribution Facility
57 Xxxxx XX 00000 Union Crowne Plaza - Xxxxx
58 Xxxxxxxx XX 00000 Polk Xxxxxx'x Landing
59 Various Various Various Various Dollar General Portfolio
59.01 Xxxxx Xxxxx XX 00000 Mahoning Dollar General - 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxx, XX
59.02 Xxxxxxxxx XX 00000 Summit Dollar General - 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, XX
59.03 Xxxxx Xxxxxx XX 00000 Xxxxx Dollar General - 3626 Cleveland Ave, Canton (South), OH
59.04 Xxxxxxxxxxx XX 00000 Xxxxxxxx Dollar General - 0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, XX
59.05 Xxxxxxxxxxx XX 00000 Wood Dollar General - 000 0xx Xxxxxx, Xxxxxxxxxxx, XX
59.06 Xxxxxxxxxxxx XX 00000 Clermont Dollar General - 0000 XX Xxxxx 000, Xxxxxxxxxxxx, XX
59.07 Xxxxxx XX 00000 Trumbull Dollar General - 000 Xxxxx Xxxxxx, Xxxxxx, XX
59.08 Xxxx Xxxxxx XX 00000 Xxxxx Dollar General - 000 Xxxx Xxxxxx Xxxxx, Xxxx Xxxxxx, XX
59.09 Xxxxxxx XX 00000 Tuscarawas Dollar General - 00000 Xxxxxx Xxxxxx XX, Xxxxxxx, XX
59.10 Xxxxxxxx XX 00000 Erie Dollar General - 0000 Xxxxxxxxx Xxxx, Xxxxxxxx, XX
59.11 Xenia OH 45385 Xxxxxx Dollar General - 000 Xxxx Xxxx Xxxxxx, Xxxxx, XX
59.12 Xxxxxx XX 00000 Lorain Dollar General - 000 Xxxxxxx Xxxx, Xxxxxx, XX
59.13 Xxxxxx XX 00000 Athens Dollar General - 0000 X Xxxxx Xx, Xxxxxx XX
59.14 Xxxxxx XX 00000 Ashtabula Dollar General - 000 X Xxxx Xxxxxx, Xxxxxx, XX
59.15 Xxxxxxxxxxx XX 00000 Clinton Dollar General - 000 X Xxxx Xxxxxx, Xxxxxxxxxxx, XX
59.16 Xxxxxx XX 00000 Athens Dollar General - 0000 Xxxxxx Xxxx, Xxxxxx, XX
59.17 Xxxxxxx XX 00000 Geauga Dollar General - 00000 Xxxxxxx Xxxx, Xxxxxxx, XX
59.18 Xxxxxxxx XX 00000 Xxxxx Dollar General - 000 Xxxxxxxx Xxxxxxx Xxxxxxxx, XX
59.19 Xxxxxxx XX 00000 Ashtabula Dollar General - 0000 Xxxxx Xxxxx 0, Xxxxxxx, XX
59.20 Xxxxxxxxxx XX 00000 Xxxx Dollar General - 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX
59.21 Xxxxxxxx XX 00000 Xxxxxx Dollar General - 0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX
59.22 Xxxxxxx XX 00000 Pike Dollar General - 000 X Xxxxxx Xxx, Xxxxxxx, XX
59.23 Xxxxx XX 00000 Xxxxx Dollar General - 000 Xxxxxxxx Xxx, Xxxxx, XX
59.24 Xxxxxxxx XX 00000 Noble Dollar General - 00000 Xxxxx Xxxxx 00, Xxxxxxxx, XX
59.25 Xxxxx Xxxxxxx XX 00000 Scioto Dollar General - 00000 X Xxxx Xx, Xxxxx Xxxxxxx, XX
59.26 Xxxx Xxxxx XX 00000 Xxxxx Dollar General - 00 X Xxxxxxx Xx, Xxxx Xxxxx, XX
59.27 Xxxxxxxxxx XX 00000 Xxxxx Dollar General - 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
59.28 Xxxxxxxx XX 00000 Athens Dollar General - 00 X Xxxx Xxxxxx, Xxxxxxxx, XX
60 Various MI Various Macomb Xxxxxxxxx Companies
60.01 Xxxxxxx XX 00000 Macomb Xxxxx
Township
60.02 Xxxxxxx XX 00000 Macomb Xxxxxxxxx
Township
60.03 Xxxxxxxxx XX 00000 Macomb 12 Xxxx
00.00 Xxxxxx XX 00000 Macomb 23 Mile
Township
60.05 Xxxxxx XX 00000 Macomb Xxxxxx
60.06 Xxxxxx XX 00000 Macomb Schoenherr
61 Various NJ Various Monmouth Food Circus Supermarket
61.01 Xxx Xxxx XX 00000 Monmouth Food Circus - Red Bank, NJ
61.02 Xxxx Xxxxxxxx XX 00000 Monmouth Food Circus - Wall Township, NJ
00 Xxxxx Xxxxxx XX 00000 Nevada Xxxxx Xxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxx XX 00000 Alameda Xxxxxx Xxxx Xxxxxxx
00 Xxxxxxxxx XX 00000 Washington Radisys Xxxxxxxxxxxx Xxxxxxxx
00 Xxxxxx XX 00000 Middlesex Stop & Shop (Malden, MA)
66 Xxxxxxx XX 00000 Xxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
00 Xxxxxxxx XX 00000 El Paso Xxxx Xxxxx Xxxxxxx
Xxxxxxx
00 Xxxxxxxx XX 00000 Orange Xxxxxxxx Xxxx Xxxxxx
00 Xxxxxxx XX 00000 XxXxxxxxx Inland Olivet Church
70 Dallas TX 75231 Dallas Xxx Xxxx Xxxxx-Xxxxxxx
00 Xxxxxx XX 00000 Suffolk 000 Xxxxxxx Xxxxxx
00 Xxxxxxxxxx XX 00000 Chesterfield Victorian Square
00 Xxxx Xxxxxxxxxx XX 00000 Bergen 00-00 Xxxxxx Xxxx Xxxxxxx
00 Xxxxxxxxxxxx XX 00000 Philadelphia Liberties Walk
00 Xxxxxxxxx Xxxxx XX 00000 Xxxxxxx Residence Inn - Highlands Ranch
76 Columbia MD 21044 Xxxxxx Kimco Columbia- Harpers Choice
77 Xxxxxxxx XX 00000 Mecklenburg Xxxxxxxx Festival
78 Xxxxxxx XX 00000 Alameda Xxxxxx Xxxxxx
00 Xxxxxxxxxx XX 00000 Essex Stop & Shop (Swampscott, MA)
80 Plano TX 00000 Xxxxxx Xxxx Xxxxxxxx
00 Xxx Xxxxx XX 00000 San Diego Comfort Inn - Gaslamp
82 Frisco TX 75034 Xxxxxx Xxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxx XX 00000 Fairfax Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx
00 Xxxxxxxxxx XX 00000 Alameda Xxxxxxxxxx Xxxxxx Xxxxxxxx
00 Xxxxx XX 00000 DuPage 850 - 000 Xxxxxxxxxxx Xxxx
00 Xxxxxxxxx XX 00000 Xxxx Xxxxxx Xxxxxx Xxx - Xxxxxxxxx
00 Xxxxxxx XX 00000 Erie 000 Xxxx Xxxxx Xxxxxxx
00 Xxx Xxxx XX 00000 Xxxx Marketplace of Oak Lawn
89 Xxxxx XX 00000 Maricopa Xxxxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxxxxx XX 00000 Rockingham Hampton Inn Portsmouth
91 Xxx Xxxxxxx XX 00000 Xxxxx XX Xxxxxxxx
00 Xxxxxx XX 00000 Dallas Xxxxxxxxxx Xxxxxxxxxx
00 Xxxxxxx XX 00000 Xxxxxx Xxxxxxx & Xxxxx
94 Xxx Xxxxxxx XX 00000 Los Angeles 0000 Xxxxxxx Xxxxxx
00 Xxxx Xxxxxx XX 00000 Pinal ELS - Fiesta Grande I & II
96 Tulsa OK 74133 Tulsa Xxxxxxxx Xxxxxxxxxx
00 Xxxxxxxxxx XX 00000 Portsmouth Pepperwood Townhomes
City
98 Eagan MN 55123 Dakota Best Buy (MN)
99 Xxxxxxxxxx XX 00000 Middlesex Stop & Shop (Framingham, MA)
100 Maspeth NY 00000 Xxxxxx Xxxxx Xxxxxxxx
000 Xxxxxxx XX 00000 Maricopa Xxxx Xxxxxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxxx XX 00000 Clackamas Xxxxxxxxxxx Xxxxxxx
000 Xxxxx XX 00000 Monmouth Xxxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxxx XX 00000 El Paso Hilton Garden Inn - Colorado Springs
Springs
000 Xxxx Xxxxxxx XX 00000 Ottawa Xxxxx Crest
000 Xxxxx Xxx XX 00000 Xxxxx HSA-Green Bay
107 Indio CA 92201 Xxxxxxxxx Xxxxxx Xxxxxxxxxx
000 Xxxxxxxxxx XX 00000 Charleston Xxxxx Xxxxxx Xxxxxx
000 Xxxxxxx XX 00000 Bristol Stop & Shop (Bristol, RI)
000 XxXxxxx XX 00000 Xxxxxxx Northwood Apartments
000 Xxxxxxx XX 00000 Xxxxxxxx Xxxxxxxx at Enfield Apartments
112 Xxxxxxxxx XX 00000 Olmsted Hilton Garden Inn - Rochester
113 Highlands Ranch CO 80129 Xxxxxxx Town Xxxxxx xx Xxxxxxxxx Xxxxx
000 Xxxxxxxxxx XX 00000 Sacramento Travelers Building
115 Carlsbad CA 92011 San Diego Xxxxxx Xxx - Xxxxxxxx
000 Xxxxxxxxx XX 00000 Xxxxx Inland - Xxxxxx Xxxxxx Xxxxxxxx
000 Xxxxxxxx XX 00000 York Xxxxxxxx Xxxxxxx
000 Xxxxxxxxxx XX 00000 Jefferson Five Points Xxxx Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxx XX 00000 Xxxxxxxxx XXX - Xxxxxxxx Xxxxx
000 Xxxxx XX 00000 Tulsa Heatherstone Apartments
000 Xxxxxx XX 00000 Xxxxxx Xxxxxxxxx XX
000 Xxxxxx XX 00000 Xxxxxx Yakima Xxxxxx Xxxxx Xxxxxx
000 Xxxxxx XX 00000 Los Angeles Marshall's - Xxxxxx
000 Xxxxxxxxx XX 00000 Lafayette Camellia Xxxxx Xxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxx XX 00000 Forsyth Greystone Professional Xxxxxx
000 Xxxxxxxxxxxx XX 00000 Philadelphia 0000-00 Xxxxxx Xxxxxx
000 Xxxx Xxx XX 00000 Navajo ELS - Venture In
128 Xxxxxxx XX 00000 Maricopa Xxxxx Xxxxxxx Xxxxxxxxxx
000 Xxxxxxx Xxxxx XX 00000 Forsyth The Ledges Apts
000 Xxxxxx XX 00000 Xxx Xxxxxx 0000 Xxxxxxx Xxxx
000 Xxxxxxxx Xxxx XX 00000 Oklahoma Country Club Xxxxxx
000 Xxxxxx Xxx Xxx XX 00000 Orange Coast Business Xxxxxx
000 Xxxxxxx XX 00000 Shelby Trinity Place
000 Xxxxxxxxxx XX 00000 Oakland 000 X. Xxx Xxxxxxxx Xxxx
000 Xxxxxxxxx XX 00000 Mecklenburg Xxxxxxx Xxx & Xxxxxx - Xxxxxxxxx
000 Xxxxxxx XX 00000 Xxxxxx 0000 Xxxxxxxx
000 Xxxxxxxx XX 00000 San Diego Ridgecrest MHP
000 Xxx'x Xxxxxx XX 00000 Jackson Xxxxx Xxxxx Xxxx
000 Xxxxx x'Xxxxx XX 00000 Kootenai Xxxxx x'Xxxxx Xxxxxx
000 Xxxxxx XX 00000 Worcester Midstate Xxxxxx
000 Xxxxxxxxxxxx XX 00000 Philadelphia 000 Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx XX 00000 Westchester Xxx Xxxxxxxx Xxxxx
000 Xxxxxxxxxx XX 00000 Washington Nilfisk Advance - AR
144 Xxxxxxxx XX 00000 Alameda 0000 Xxxxxxx Xxxxxx
000 Xxxxxx XX 00000 Xxxxxx Xxxxxxx Inn Las Colinas (AVR)
000 Xxxxxxxxx XX 00000 Davidson Signature Xxxxxx
000 Xxxxxxx XX 00000 Xxxxx StorageMax Xxxxxxxxx
000 Xxx Xxxxx XX 00000 San Diego 000 X. X Xxxxxx
000 Xxxx Xxxxx XX 00000 Palm Beach XXX Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxx XX 00000 Contra Costa Walnut Creek Self Storage
151 Xxxxxxxxxx XX 00000 Xxxxxx Walgreen's - Chanhassen, MN
152 Xxxxxxx XX 00000 Xxxxxx Fairwind Apartments
000 Xxxxxxxxx XX 00000 Los Angeles Mountain View Business Park
154 Dothan AL Various Houston Register American Self Storage
154.01 Dothan AL 36301 Houston American Self Storage - East
154.02 Dothan AL 36305 Houston American Self Storage - Xxxxxxx Stand
154.03 Dothan AL 36305 Houston American Self Storage West
154.04 Dothan AL 36303 Houston American Self Storage - North
155 Dallas TX 75211 Xxxxxx Xxxxxxxxxxxx Heights
000 Xxxxxxxx XX 00000 Brazoria Hampton Inn - Pearland, TX
000 Xx. Xxxx XX 00000 Xxxxxx 000 Xxxxxxxx Xxxxxx
000 Xxxxxx XX 00000 Dallas Xxxx Xxxxx Xxxxxxxxxx
000 Xxxx XX 00000 Yuma ELS - Xxxxx XXX & XX
000 Xxxxxx Xxxxx XX 00000 San Xxxxx Xxxxx Xxxxx Xx Xxxxxx
000 Xxxxxxxxx XX 00000 Guilford Xxxxxxxx Xxxxxx xx Xxxxx Xxxxxxx
000 Xxxxxxx XX 00000 Xxxxxx The Xxxxxxx Redevelopment
163 Dixmoor IL 60406 Xxxx Modern Estates MHC
000 Xxxxxxxxx XX 00000 Platte Xxxxxxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxx XX 00000 Georgetown ELS - Inlet Xxxx Xxxxxxx
000 Xxxxxxxx XX 00000 Xxxx Xxxxxxxx Xxxxxxxx Xxxx - Xxxxxxxx
000 Xxxx XX 00000 Orange 000 Xxxxxx Xxxxxx
000 Xxxxxxxx XX 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxx
000 Xxxxxxxxxx XX 00000 Bucks Xxxxxxxxxx Xxxxxx
000 Xxxxxxxxx XX 00000 Wicomico Salisbury Xxxxxxxxx
000 Xxxxx Xxx XX 00000 Orange 0000 X. Xxxxxxx Xxxxxx
000 Xxxx XX 00000 Maricopa The Shoppes at Stapley
173 Greenville NC 27834 Pitt Xxxxxxxx Xxxx Xxxxxxxxxx
000 Xxxxxxxxx XX 00000 Oakland Meadowbrook Professional Plaza
175 Van Nuys CA 91405 Los Angeles Albertsons Xxx Xxxx Xxxxxx
000 Xxxxx Xxxx XX 00000 Xxxxxxxxxx Xxxxxxx Inn Xxxxxx-Round Rock
000 Xxx Xxxxx XX 00000 San Diego Xxxxx Xxxx Xxxxxx
000 Xxxx XX 00000 Oakland Xxxx Xxxx Xxxxxx Xxxxxx
000 Xxxxxx XX 00000 Mobile StorageMax Xxxxxxx
000 Xxxxxxxxx XX 00000 Mecklenburg Mountcrest
181 Various MI Various Various Fort Xxxx Self Storage
181.01 Xxx Xxxxx XX 00000 Washtenaw Xxxxxxx Road
181.02 Xxxxxxxx XX 00000 Xxxxx Xxxx Road
182 Kennewick WA 99336 Xxxxxx Walgreens - Kennewick, WA
183 Xxxxxxxx XX 00000 Xx Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx
000 Xxxxxxxx XX 00000 Mobile Rangeline Commercial Park and
Mini-Storage
000 Xxxxxxx XX 00000 Xxxxxxx 000 Xxxxxxxxxx Xxxxx
000 Xxx Xxxxxxx XX 00000 Riverside Xxxxxxx Xxxxxx XX Xxxxxx
000 Xxxxxx XX 00000 Audrain Xxxx Xxxxx Xxxxxxxx
000 Xxxxxxx XX 00000 Shasta Redwoods Xxxxxx Xxxxxxx
000 Xxxxxxxx XX 00000 Luzerne United Xxxx Xxxxx
000 Xxxxxxxx XX 00000 Los Angeles 00 X. Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx XX 00000 Saint Lucie Windsong Mobile Village
192 Xxxxxxxxxx XX 00000 Washington Cypresswood Apartments
000 Xxxxxxx XX 00000 Dallas Lone Star Self Storage
194 Xxxxxxx XX 00000 Maricopa Rancheria & Xxxxxxxxx XXX
000 Xxxxx Xxxxx XX 00000 Santa Xxxxxxx Fortress Secure Mini Storage
000 Xxxxxxxxx XX 00000 Tarrant 000 Xxxxxxxxxx Xxxxxx Xxxxxxxx
000 Xxxxx Xxxxxx XX 00000 Dakota Walgreens (Apple Valley)
198 Xxxxxxxxxx XX 00000 Northampton Inland Eckerds - Hellertown
199 Xxxxxxx XX 00000 Lebanon Inland Eckerds - Lebanon
200 Keizer OR 97303 Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx
000 Xxxxxxxxxx XX 00000 Madison Xxxxxxxx Xxxxxxxxxx
000 Xxxxxxxxxxx XX 00000 Jefferson Inland Eckerds - Punxsutawny
203 Xxxxxxxxxxxxx XX 00000 Xxxxxx Xxxxx Xxxxxx
000 Xxxx Xxxx XX 00000 San Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx
000 Xxxx Xxxxx XX 00000 La Crosse Neshonoc Lakeside RV Resort
206 Xxxxxxxxxxxxx XX 00000 Xxxxxx Lake Xxxxxxxxxxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxxxx XX 00000 Osceola Xxxxxxxxx Xxxxxxx
000 Xxxxxx Xxxx XX 00000 Xxxxxxxx Xxxxxxx Self Storage
000 Xxxxx Xxxxx XX 00000 Orange The Center on Bastanchury
210 Xxxxxx XX 00000 Saline Xxxxxxxx Xxxxxxxx
000 Xxxxxxxx XX 00000 Xxxxxxx Riverwind Apartments
000 Xxxxxxxx Xxxx XX 00000 Hennepin 0000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxx XX 00000 Xxxxxxxx Xxxxx 00
000 Xxxxxxxxx XX 00000 Xxxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx
000 Xxxxxx XX 00000 Lincoln Pilot Knob
216 Xxxxxxx GA 30228 Xxxxxxx Xxxxxxx Xxxxxxx
000 Xxxxxxxxxx XX 00000 Tuscaloosa Xxx Xxxxxx Xxxxxxxxxx
000 Xxxxxxx XX 00000 Dallas Garland Retail
000 Xxxxx Xxxxxxx XX 00000 Santa Xxxxxxx Coast Xxxxxxx Xxxx
000 Xxxxxxxxx XX 00000 Ventura Day's Inn - Camarrillo
221 Xxxxx XX 00000 Xxxxx StorageMax Byram
000 Xxxxx Xxxx XX 00000 Xxxx Xxxx Xxxxxx Xxxxx
000 Xxxxxxxx XX 00000 Sonoma Xxxxxx Xxxxx Xxxxxx Xxxxx
000 Xxxxxxx XX 00000 Xxxxx Xxxxxxxxxx Apartments
225 Baton Rouge LA 70819 East Baton Discount Storage
Rouge
226 Baton Rouge LA 70815 East Baton Sunbelt Storage
Rouge
000 Xxxx Xxxxxx XX 00000 Pinal ELS - Foothills West
228 Newnan GA 30265 Coweta Crossroads Mini Storage
229 Lynwood CA 90262 Los Angeles Xxxxxxx Xxxxx
000 Xxxxx XX 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx
000 Xxxx Xxxxxx XX 00000 Pinal ELS - Casita Verde
232 Xxxxx XX 00000 Xxxxxx StorageMax Crossgates Storage Park
233 Xxxxxxx XX 00000 Xxxxx Casa Grande & Southwick Apartments
233.01 Xxxxxxx XX 00000 Xxxxx Casa Grande Apartments
233.02 Xxxxxxx XX 00000 Xxxxx Xxxxxxxxx Xxxxxxxxxx
000 Xxxxxxxxxx XX 00000 Madison Xxxxxxxxxx Xxxxx
000 Xxxx Xxxxxx XX 00000 Pinal High Chaparral MHP
236 XxXxxxxx TX 75069 Collin Safeway Self Storage
237 Xxxxxx XX 00000 Gallatin Xxxxxx Xxxxxx XXX
000 Xxxxxxxxx XX 00000 Shelby Hillside Medical Xxxxxx
000 Xxxxx Xxxxxx XX 00000 San Desert Mountain Plaza
Bernardino
000 Xxxx Xxxxxxxxx XX 00000 Xxx Xxxxxxx The Lobby
241 Mesquite TX 75150 Dallas Xxxxxx Xxxxx Xxxxxxxx Xxxx
000 Xxxxxxxxxx XX 00000 Petersburg Walmart Plaza - Petersburg
City
243 San Dimas CA 91773 Los Angeles CVS - Xxx Xxxxx
000 Xxxxxx XX 00000 Dallas 0000-0000 Xxxxxxxxx Xxxxx
000 Xxxxx Xxxx XX 00000 Galveston Parkwood / Lakewood Apartments
245.01 Xxxxx Xxxx XX 00000 Xxxxxxxxx Xxxxxxxx Apartments
245.02 Xxxxx Xxxx XX 00000 Galveston Xxxxxxxx Xxxxxxxxxx
000 Xxxxxx XX 00000 Xxx XxxxxxxXxx Tupelo 2
247 Kalamazoo MI 49048 Kalamazoo Walgreens (Kalamazoo, MI)
248 Evansville IN Various Vanderburgh Xxxxxx MHP
248.01 Xxxxxxxxxx XX 00000 Vanderburgh Xxxxxx MHP West
248.02 Xxxxxxxxxx XX 00000 Vanderburgh Xxxxxx MHP East
000 Xxxx Xxxxxxxxx XX 00000 Rensselaer 00 Xxxx Xxxx
000 Xxxxxxxxx XX 00000 Tippecanoe Deerfield Commons
000 Xxxx Xxxxxx XX 00000 Ouachita Morning Meadow
252 Clinton MD 20735 Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx
000 Xxxxxx Xxxxxx XX 00000 Richmond 0000 Xxxxxx Xxxx Xxxx
000 Xxxxxxx XX 00000 Xxxxx StorageMax Xxxxxxx XX
255 Houston TX 77005 Xxxxxx Xxxxxxx Xxxx Village
256 Tavares FL 32778 Lake Best American Self Storage
257 Woodstock GA 30189 Cherokee Napa Retail Center
258 Seguin TX 78155 Xxxxxxxxx Pecan Xxxxx Xxxxxxxxxx
000 Xxxxxxxx XX 00000 Richland Columbia Self Storage
000 Xxxxx XX 00000 Xxxxxxx Xxxxxxxxxx Xxxx
261 Westfield NJ 00000 Xxxxx Xxx Xxxxxx Mixed Use
262 Xxxx Xxxxx XX 00000 Tarrant Xxxx Xxxxx Xxxxxx
000 Xxxx XX 00000 Tarrant Walgreens - Azle, TX
264 Xxxxxxx XX 00000 Xxxxx StorageMax Xxxxxxx
000 Xxxxxxxxx XX 00000 Sheboygan Penske Truck Leasing
266 Xxxxxx Xxxxx XX 00000 San Xxxx Xxxxxxxx Del Amo MHP
Obispo
267 Xxxxxxx XX 00000 Xxxxxx Xxxxxxxxxx Xxxxxx
000 Xxxxxxx XX 00000 Xxxxxx Woodedge Shopping Center
269 Reading PA 19605 Berks Valley View Tuckerton MHC
Net
Mortgage
Interest Interest Original Cutoff Rem. Maturity/ Amort.
Loan # Size Measure Rate (%) Rate Balance Balance Term Term ARD Date Term
------------------------------------------------------------------------------------------------------------------------------------
1 2364136 Square Feet 6.04350 6.02295 240,000,000 240,000,000 120 120 07/01/16 0
1.01 588600 Square Feet 6.04350 72,500,000 72,500,000 120 120 0
1.02 559108 Square Feet 6.04350 59,500,000 59,500,000 120 120 0
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192 122 Units 6.12000 6.06945 3,600,000 3,600,000 120 118 04/01/16 360
193 598 Units 5.99000 5.92945 3,500,000 3,497,091 120 119 05/01/16 360
194 120 Pads 6.25000 6.22945 3,450,000 3,447,325 60 59 05/11/11 360
195 696 Units 5.85500 5.83445 3,450,000 3,442,404 240 239 05/01/26 240
196 72518 Square Feet 6.41000 6.38945 3,422,155 3,422,155 120 119 05/11/16 360
197 14500 Square Feet 5.76000 5.65945 3,400,000 3,400,000 120 117 03/01/16 360
198 13813 Square Feet 5.02000 4.99945 3,400,000 3,400,000 60 60 06/01/11 0
199 13813 Square Feet 5.02000 4.99945 3,400,000 3,400,000 60 60 06/01/11 0
200 64 Units 6.00000 5.92945 3,400,000 3,397,182 120 119 05/01/16 360
201 100 Units 6.11000 6.00945 3,400,000 3,393,931 84 82 04/01/13 360
202 13824 Square Feet 5.02000 4.99945 3,322,000 3,322,000 60 60 06/01/11 0
203 35006 Square Feet 6.43150 6.42095 3,200,000 3,200,000 60 60 07/01/11 360
204 149 Pads 5.33000 5.22945 3,150,000 3,150,000 120 117 03/01/16 360
205 240 Pads 6.05000 6.02945 3,120,000 3,120,000 120 118 04/01/16 348
206 19976 Square Feet 6.43000 6.35945 3,098,000 3,098,000 120 120 06/01/16 360
207 20750 Square Feet 6.28000 6.20945 3,100,000 3,094,676 60 58 04/01/11 360
208 194 Units 6.25000 6.17945 3,000,000 2,997,674 120 119 05/01/16 360
209 8997 Square Feet 5.51000 5.48945 3,000,000 2,997,182 120 119 05/01/16 360
210 30700 Square Feet 5.95000 5.92945 2,900,000 2,900,000 120 118 04/01/16 360
211 150 Units 6.20000 6.17945 2,880,000 2,872,415 120 118 04/01/16 300
212 18821 Square Feet 6.47500 6.45445 2,870,000 2,870,000 120 120 06/01/16 360
213 33501 Square Feet 5.57000 5.54945 2,800,000 2,800,000 120 118 04/01/16 360
214 120 Units 5.87500 5.85445 2,800,000 2,794,307 240 239 05/01/26 240
215 20031 Square Feet 6.08000 5.98945 2,666,000 2,663,837 120 119 05/01/16 360
216 17490 Square Feet 6.24300 6.22245 2,660,000 2,655,393 120 118 04/01/16 360
217 82 Units 5.62000 5.51945 2,630,000 2,612,880 120 117 03/01/16 240
218 8965 Square Feet 5.66000 5.55945 2,575,000 2,567,570 120 117 03/01/16 360
219 8679 Square Feet 5.90000 5.79945 2,567,000 2,562,198 120 118 04/01/16 360
220 82 Rooms 6.61000 6.58945 2,500,000 2,500,000 120 120 06/11/16 300
221 487 Units 6.15000 6.04945 2,480,000 2,476,927 120 119 05/01/16 300
222 14050 Square Feet 6.22100 6.14045 2,435,000 2,433,097 120 119 05/01/16 360
223 78 Pads 6.39000 6.28945 2,425,000 2,425,000 120 120 06/01/16 360
224 72 Units 6.05000 5.99945 2,400,000 2,393,512 120 118 04/01/16 300
225 387 Units 5.96000 5.93945 2,375,000 2,368,479 120 118 04/01/16 300
226 569 Units 5.94000 5.91945 2,375,000 2,368,456 120 118 04/01/16 300
227 192 Pads 5.72000 5.69945 2,325,000 2,325,000 120 118 04/01/16 360
228 273 Units 6.40000 6.37945 2,305,000 2,299,140 120 118 04/11/16 300
229 11918 Square Feet 6.29000 6.18945 2,300,000 2,298,236 120 119 05/01/16 360
230 181 Pads 5.47000 5.36945 2,250,000 2,250,000 120 119 05/01/16 360
231 192 Pads 5.71000 5.68945 2,250,000 2,250,000 120 118 04/01/16 360
232 362 Units 6.15000 6.04945 2,250,000 2,247,212 120 119 05/01/16 300
233 117 Units 6.05000 5.99945 2,212,000 2,206,020 120 118 04/01/16 300
233.01 89 Units 6.05000 1,528,431 1,524,299 120 118 300
233.02 28 Units 6.05000 683,569 681,722 120 118 300
234 16109 Square Feet 5.90000 5.79945 2,200,000 2,200,000 120 120 06/01/16 360
235 239 Pads 6.35000 6.32945 2,194,000 2,194,000 120 120 06/11/16 360
236 377 Units 6.61000 6.58945 2,180,000 2,180,000 120 120 06/01/16 360
237 140 Pads 6.17000 6.14945 2,150,000 2,146,214 120 118 04/11/16 360
238 16166 Square Feet 6.37000 6.31945 2,100,000 2,100,000 120 119 05/01/16 360
239 26724 Square Feet 5.86000 5.83945 2,000,000 2,000,000 120 118 04/11/16 360
240 5427 Square Feet 6.43500 6.41445 2,000,000 1,998,527 120 119 05/01/16 360
241 73971 Square Feet 6.36000 6.28945 2,000,000 1,998,496 120 119 05/01/16 360
242 12200 Square Feet 5.89000 5.86945 1,920,000 1,920,000 120 120 06/11/16 360
243 13075 Square Feet 5.90000 5.87945 1,900,000 1,896,446 120 118 04/11/16 360
244 87 Units 6.08000 6.05945 1,900,000 1,895,028 60 57 03/11/11 360
245 216 Units 6.00000 5.97945 1,900,000 1,887,216 180 178 04/01/21 180
245.01 128 Units 6.00000 1,180,063 1,172,123 180 178 180
245.02 88 Units 6.00000 719,937 715,093 180 178 180
246 260 Units 6.15000 6.04945 1,875,000 1,872,677 120 119 05/01/16 300
247 14820 Square Feet 6.18000 6.15945 1,750,000 1,750,000 120 120 06/11/16 0
248 145 Pads 6.88000 6.85945 1,700,000 1,698,898 120 119 05/11/16 360
248.01 97 Pads 6.88000 1,128,745 1,128,013 120 119 360
248.02 48 Pads 6.88000 571,255 570,885 120 119 360
249 24521 Square Feet 6.43500 6.41445 1,689,000 1,687,756 120 119 05/11/16 360
250 98 Units 6.29000 6.22945 1,683,000 1,681,709 120 119 05/11/16 360
251 381 Units 6.14000 6.11945 1,670,000 1,667,039 120 118 04/01/16 360
252 18961 Square Feet 6.06000 5.95945 1,645,000 1,643,658 120 119 05/01/16 360
253 5900 Square Feet 6.54000 6.51945 1,600,000 1,596,255 120 117 03/11/16 360
254 264 Units 6.15000 6.04945 1,570,000 1,568,054 120 119 05/01/16 300
255 6975 Square Feet 6.41500 6.30445 1,555,000 1,552,411 120 118 04/01/16 360
256 320 Units 6.35000 6.32945 1,500,000 1,498,214 120 119 05/01/16 300
257 14000 Square Feet 6.17000 6.09945 1,500,000 1,497,359 120 118 04/01/16 360
258 48 Units 6.20000 6.08945 1,460,000 1,457,447 120 118 04/01/16 360
259 420 Units 6.18000 6.15945 1,410,000 1,406,274 120 118 04/01/16 300
260 108 Pads 6.21000 6.18945 1,400,000 1,398,903 120 119 05/01/16 360
261 5100 Square Feet 5.93000 5.90945 1,400,000 1,397,398 120 118 04/01/16 360
262 4701 Square Feet 5.77000 5.74945 1,400,000 1,397,305 120 118 04/01/16 360
263 14820 Square Feet 5.52000 5.49945 1,350,000 1,350,000 120 117 03/01/16 0
264 193 Units 6.15000 6.04945 1,350,000 1,348,327 120 119 05/01/16 300
265 9331 Square Feet 6.02000 5.99945 1,325,000 1,321,399 120 118 04/01/16 300
266 41 Pads 6.46000 6.35945 1,300,000 1,300,000 120 120 06/01/16 360
267 12431 Square Feet 6.39000 6.35945 1,300,000 1,297,823 120 118 04/01/16 360
268 8646 Square Feet 6.26000 6.23945 1,295,000 1,293,999 120 119 05/01/16 360
269 74 Pads 6.53000 6.50945 960,000 958,444 60 58 04/11/11 360
Monthly
Rem. Debt Servicing Accrual ARD Crossed
Loan # Amort. Service Fee Rate Type (Y/N) ARD Step Up (%) Title Type Loan
------------------------------------------------------------------------------------------------------------------------------------
1 0 1,225,488 Actual/360 No Fee
1.01 0 Fee
1.02 0 Fee
1.03 0 Fee
1.04 0 Fee
1.05 0 Fee
2 0 1,050,010 Actual/360 No Fee
2.01 0 Fee
2.02 0 Fee
3 360 1,043,529 Actual/360 No Fee/Leasehold
4 0 Actual/360 No Fee
865,804
5 358 Actual/360 No Fee/Leasehold
869,741
5.01 358 Fee
5.02 358 Fee
5.03 358 Leasehold
5.04 358 Fee
5.05 358 Leasehold
5.06 358 Leasehold
6 0 562,484 Actual/360 No Fee/Leasehold
7 360 686,528 Actual/360 No Leasehold
8 0 406,484 Actual/360 No Fee
9 0 419,943 Actual/360 No Fee
10 0 383,400 Actual/360 No Leasehold
11 360 406,552 Actual/360 No Fee
12 358 347,274 Actual/360 No Fee/Leasehold
13 360 319,449 Actual/360 No Fee
14 358 299,177 Actual/360 No Fee
14.01 358 Fee
14.02 358 Fee
14.03 358 Fee
14.04 358 Fee
14.05 358 Fee
15 360 294,970 Actual/360 No Fee
16 360 273,433 Actual/360 No Fee
17 178 360,655 Actual/360 No Fee/Leasehold
17.01 178 Leasehold
17.02 178 Fee
17.03 178 Leasehold
17.04 178 Leasehold
18 0 203,259 Actual/360 No Fee
19 360 253,860 Actual/360 No Fee
20 360 235,208 Actual/360 No Fee
21 360 206,668 Actual/360 No Fee
21.01 360 Fee
21.02 360 Fee
22 0 185,119 Actual/360 No Fee
23 360 205,516 Actual/360 No Fee
24 360 198,895 Actual/360 No Fee
25 0 174,059 Actual/360 No Fee
26 360 181,696 Actual/360 No Fee
27 360 181,882 Actual/360 No Fee
28 360 160,955 Actual/360 No Fee
29 0 102,844 30/360 No Fee
30 360 151,626 Actual/360 No Fee
31 0 125,215 Actual/360 No Fee
32 360 138,798 Actual/360 No Leasehold
33 298 153,472 Actual/360 No Fee
33.01 298 Fee
33.02 298 Fee
34 355 127,888 Actual/360 No Fee
35 360 126,052 Actual/360 No Fee
36 360 128,394 Actual/360 No Fee
37 360 126,025 Actual/360 No Fee
38 360 121,048 Actual/360 No Fee
39 360 121,731 Actual/360 No Fee
40 291 128,250 Actual/360 No Fee
41 298 133,009 Actual/360 No Fee
41.01 298 Fee
41.02 298 Fee
42 300 115,516 Actual/360 No Fee
43 360 112,923 Actual/360 No Fee
44 360 110,276 Actual/360 No Fee
45 360 113,984 Actual/360 No Fee
46 360 117,847 Actual/360 No Fee/Leasehold
47 360 106,307 Actual/360 No Fee
48 360 108,867 Actual/360 No Fee
49 360 104,740 Actual/360 No Fee
50 0 73,870 30/360 Yes Lesser of maximum rate permitted by applicable Fee
law or 2.00% + Initial Rate
51 360 94,466 Actual/360 No Fee
52 360 94,436 Actual/360 No Fee
53 360 92,422 Actual/360 No Fee
54 360 90,833 Actual/360 No Fee
55 300 94,352 Actual/360 No Fee
56 360 88,802 Actual/360 No Fee
57 360 87,869 Actual/360 No Fee
58 360 87,550 Actual/360 No Fee
59 360 90,727 Actual/360 Yes Greater of 8.57% or the Treasury Rate plus two Fee
(2%) percentage points
59.01 360 Fee
59.02 360 Fee
59.03 360 Fee
59.04 360 Fee
59.05 360 Fee
59.06 360 Fee
59.07 360 Fee
59.08 360 Fee
59.09 360 Fee
59.10 360 Fee
59.11 360 Fee
59.12 360 Fee
59.13 360 Fee
59.14 360 Fee
59.15 360 Fee
59.16 360 Fee
59.17 360 Fee
59.18 360 Fee
59.19 360 Fee
59.20 360 Fee
59.21 360 Fee
59.22 360 Fee
59.23 360 Fee
59.24 360 Fee
59.25 360 Fee
59.26 360 Fee
59.27 360 Fee
59.28 360 Fee
60 360 87,475 Actual/360 No Fee
60.01 360 Fee
60.02 360 Fee
60.03 360 Fee
60.04 360 Fee
60.05 360 Fee
60.06 360 Fee
61 360 86,018 Actual/360 No Fee
61.01 360 Fee
61.02 360 Fee
62 0 66,596 Actual/360 No Fee
63 360 76,526 Actual/360 No Fee
64 360 76,195 Actual/360 No Fee
65 0 54,943 30/360 Yes Lesser of 7.17% or maximum rate permitted by Fee
applicable law
66 357 74,973 Actual/360 No Fee
67 360 81,698 Actual/360 No Fee
68 360 76,926 Actual/360 No Fee
69 0 55,565 30/360 Yes Lesser of maximum rate permitted by applicable Fee
law or 2.00% + Initial Rate
70 360 77,127 Actual/360 No Fee
71 360 77,950 Actual/360 No Fee
72 355 70,402 Actual/360 No Fee
73 180 Actual/360 No Leasehold
102,629
74 359 67,309 Actual/360 No Fee
75 360 68,803 Actual/360 No Fee
76 360 67,476 Actual/360 No Fee
77 360 70,215 Actual/360 No Fee
78 360 70,997 Actual/360 No Fee
79 0 47,678 30/360 Yes Lesser of 7.17% or maximum rate permitted by Fee
applicable law
80 360 67,944 Actual/360 No Fee
81 300 74,588 Actual/360 No Fee
82 360 62,374 Actual/360 No Fee
83 360 65,232 Actual/360 No Fee
84 360 64,446 Actual/360 No Fee
85 360 66,051 Actual/360 No Fee
86 360 60,758 Actual/360 No Fee
87 360 63,762 Actual/360 No Fee/Leasehold
88 360 61,221 Actual/360 No Fee
89 360 61,832 Actual/360 No Fee
90 358 60,406 Actual/360 No Fee
91 0 41,575 30/360 No Fee
92 0 47,326 Actual/360 No Fee
93 360 58,089 Actual/360 No Fee
94 360 57,742 Actual/360 No Fee
95 360 55,198 Actual/360 No Fee
96 358 59,641 Actual/360 No Fee
97 360 56,872 Actual/360 No Fee
98 360 53,963 Actual/360 No Fee
99 0 39,932 30/360 Yes Lesser of 7.17% or maximum rate permitted by Fee
applicable law
100 358 55,395 Actual/360 No Fee
101 360 52,522 Actual/360 No Fee
102 360 51,951 Actual/360 No Fee
103 358 54,075 Actual/360 No Fee
104 300 56,967 Actual/360 No Fee
105 336 56,484 Actual/360 No Leasehold
106 360 51,770 Actual/360 No Fee
107 360 49,479 Actual/360 No Fee
108 360 50,091 Actual/360 No Fee
109 0 34,937 30/360 Yes Lesser of 7.01% or maximum rate permitted by Fee
applicable law
110 360 49,330 Actual/360 No Fee
111 360 49,092 Actual/360 No Fee
112 298 51,984 Actual/360 No Fee
113 359 48,381 Actual/360 No Fee
114 360 45,115 Actual/360 No Fee
115 300 52,983 Actual/360 No Fee
116 0 37,905 30/360 Yes Lesser of maximum rate permitted by applicable Fee
law or 2.00% + Initial Rate
117 360 46,400 Actual/360 No Fee
118 162 67,817 Actual/360 No Fee
119 360 43,578 Actual/360 No Fee
120 359 44,054 Actual/360 No Fee
121 360 44,224 Actual/360 No Fee
122 360 43,235 Actual/360 No Fee
123 358 41,341 Actual/360 No Fee
124 360 40,029 Actual/360 No Fee
125 359 40,549 Actual/360 No Fee
126 360 40,853 Actual/360 No Fee
127 360 38,914 Actual/360 No Fee
128 360 38,700 Actual/360 No Fee
129 360 39,439 Actual/360 No Fee
130 360 40,159 Actual/360 No Fee
131 360 40,615 Actual/360 No Fee
132 0 31,029 Actual/360 No Fee
133 360 37,559 Actual/360 No Fee
134 360 39,406 Actual/360 No Fee
135 300 40,798 Actual/360 No Fee
136 360 39,751 Actual/360 No Fee
137 353 38,283 Actual/360 No Fee
138 360 36,616 Actual/360 No Fee
139 360 37,382 Actual/360 No Fee
140 300 39,432 Actual/360 No Fee
141 359 35,167 Actual/360 No Fee
142 359 35,167 Actual/360 No Fee
143 360 35,239 Actual/360 No Fee
144 360 33,995 Actual/360 No Fee
145 300 35,895 Actual/360 No Fee
146 360 33,187 Actual/360 No Fee C
147 299 36,759 Actual/360 No Fee
148 360 34,528 Actual/360 No Fee
149 360 33,757 Actual/360 No Fee
150 360 33,721 Actual/360 No Fee
151 358 30,864 Actual/360 No Fee
152 358 33,542 Actual/360 No Fee
153 360 31,132 Actual/360 No Fee
154 297 33,055 Actual/360 No Fee
154.01 297 Fee
154.02 297 Fee
154.03 297 Fee
154.04 297 Fee
155 360 30,631 Actual/360 No Fee
156 299 32,797 Actual/360 No Fee
157 358 29,730 Actual/360 No Fee
158 360 29,210 Actual/360 No Fee
159 360 29,052 Actual/360 No Fee
160 360 28,421 Actual/360 No Fee
161 360 29,242 Actual/360 No Fee
162 299 31,184 Actual/360 No Fee
163 239 37,161 Actual/360 No Fee
164 360 29,545 Actual/360 No Fee
165 360 28,325 Actual/360 No Fee
166 299 34,052 Actual/360 No Fee
167 360 29,399 Actual/360 No Leasehold
168 360 28,578 Actual/360 No Fee
169 360 28,103 Actual/360 No Leasehold
170 360 27,727 Actual/360 No Fee
171 360 27,891 Actual/360 No Fee
172 359 26,867 Actual/360 No Fee
173 354 25,185 Actual/360 No Fee
174 360 26,165 Actual/360 No Fee
175 360 26,579 Actual/360 No Fee
176 299 28,202 Actual/360 No Fee
177 359 24,937 Actual/360 No Fee
178 360 25,100 Actual/360 No Fee
179 300 26,957 Actual/360 No Fee
180 360 25,218 Actual/360 No Fee
181 359 24,942 Actual/360 No Fee
181.01 359 Fee
181.02 359 Fee
182 239 28,552 Actual/360 No Fee
183 300 26,823 Actual/360 No Fee
184 299 25,112 Actual/360 No Fee
185 358 23,182 Actual/360 No Fee
186 358 22,810 Actual/360 No Fee
187 360 21,999 Actual/360 No Fee
188 360 20,560 Actual/360 No Fee
189 360 22,927 Actual/360 No Fee
190 360 21,967 Actual/360 No Fee
191 358 21,524 Actual/360 No Fee
192 360 21,862 Actual/360 No Fee
193 359 20,962 Actual/360 No Fee
194 359 21,242 Actual/360 No Fee
195 239 24,429 30/360 No Fee
196 360 21,428 Actual/360 No Fee
197 360 19,863 Actual/360 No Fee
198 0 14,223 30/360 No Fee B
199 0 14,223 30/360 No Fee/Leasehold B
200 359 20,385 Actual/360 No Fee
201 358 20,626 Actual/360 No Fee
202 0 13,897 30/360 No Fee B
203 360 20,082 Actual/360 No Fee
204 360 17,551 Actual/360 No Fee
205 348 19,038 Actual/360 No Fee
206 360 19,439 Actual/360 No Fee
207 358 19,148 Actual/360 No Fee
208 359 18,472 Actual/360 No Fee
209 359 17,053 Actual/360 No Fee
210 360 17,294 Actual/360 No Fee
211 298 18,910 Actual/360 No Fee
212 360 18,093 Actual/360 No Fee
213 360 16,021 Actual/360 No Fee C
214 239 19,859 Actual/360 No Fee
215 359 16,121 Actual/360 No Fee
216 358 16,366 Actual/360 No Fee
217 237 18,270 Actual/360 No Fee
218 357 14,880 Actual/360 No Fee
219 358 15,226 Actual/360 No Fee
220 300 17,052 Actual/360 No Fee
221 299 16,207 Actual/360 No Fee
222 359 14,947 Actual/360 No Fee
223 360 15,153 Actual/360 No Fee
224 298 15,537 Actual/360 No Fee
225 298 15,244 Actual/360 No Fee A
226 298 15,215 Actual/360 No Fee A
227 360 13,524 Actual/360 No Fee
228 298 15,420 Actual/360 No Fee
229 359 14,221 Actual/360 No Fee
230 360 12,733 Actual/360 No Fee
231 360 13,073 Actual/360 No Fee
232 299 14,704 Actual/360 No Fee
233 298 14,320 Actual/360 No Fee
233.01 298 Fee
233.02 298 Fee
234 360 13,049 Actual/360 No Fee
235 360 13,652 Actual/360 No Fee
236 360 13,937 Actual/360 No Fee
237 358 13,126 Actual/360 No Fee
238 360 13,094 Actual/360 No Fee
239 360 11,812 Actual/360 No Fee
240 359 12,556 Actual/360 No Fee
241 359 12,458 Actual/360 No Fee
242 360 11,376 Actual/360 No Fee
243 358 11,270 Actual/360 No Leasehold
244 357 11,489 Actual/360 No Fee
245 178 16,033 Actual/360 No Fee
245.01 178 Fee
245.02 178 Fee
246 299 12,253 Actual/360 No Fee
247 0 9,138 Actual/360 No Fee
248 359 11,173 Actual/360 No Fee
248.01 359 Fee
248.02 359 Fee
249 359 10,604 Actual/360 No Fee
250 359 10,406 Actual/360 No Fee
251 358 10,163 Actual/360 No Fee
252 359 9,926 Actual/360 No Fee
253 357 10,155 Actual/360 No Fee
254 299 10,260 Actual/360 No Fee
255 358 9,742 Actual/360 No Fee
256 299 9,988 Actual/360 No Fee
257 358 9,158 Actual/360 No Fee
258 358 8,942 Actual/360 No Fee
259 298 9,240 Actual/360 No Fee
260 359 8,584 Actual/360 No Fee
261 358 8,331 Actual/360 No Fee
262 358 8,188 Actual/360 No Fee
263 0 6,296 Actual/360 No Fee
264 299 8,822 Actual/360 No Fee
265 298 8,553 Actual/360 No Fee
266 360 8,183 Actual/360 No Fee
267 358 8,123 Actual/360 No Leasehold
268 359 7,982 Actual/360 No Fee
269 358 6,087 Actual/360 No Fee/Leasehold
Letter
Originator/ of
Loan # Loan Seller Guarantor Credit
----------------------------------------------------------------------------------------------------
1 JPMCB Centro Watt America REIT V, Inc. No
1.01 JPMCB Centro Watt America REIT V, Inc. No
1.02 JPMCB Centro Watt America REIT V, Inc. No
1.03 JPMCB Centro Watt America REIT V, Inc. No
1.04 JPMCB Centro Watt America REIT V, Inc. No
1.05 JPMCB Centro Watt America REIT V, Inc. No
2 JPMCB The GFW Trust and The GFW II Trust No
2.01 JPMCB The GFW Trust No
2.02 JPMCB The GFW II Trust No
3 Capmark D. Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxx and Xxxx No
Xxxxxxxx
4 EHY Xxxxxxx Xxxxxxxx Xxxxxx No
5 NCCI Xxxx X. Xxxxxxx; Revocable Trust of Xxxx X. Xxxxxxx No
5.01 NCCI Xxxx X. Xxxxxxx; Revocable Trust of Xxxx X. Xxxxxxx No
5.02 NCCI Xxxx X. Xxxxxxx; Revocable Trust of Xxxx X. Xxxxxxx No
5.03 NCCI Xxxx X. Xxxxxxx; Revocable Trust of Xxxx X. Xxxxxxx No
5.04 NCCI Xxxx X. Xxxxxxx; Revocable Trust of Xxxx X. Xxxxxxx No
5.05 NCCI Xxxx X. Xxxxxxx; Revocable Trust of Xxxx X. Xxxxxxx No
5.06 NCCI Xxxx X. Xxxxxxx; Revocable Trust of Xxxx X. Xxxxxxx No
6 EHY The Macerich Partnership, L.P. No
7 Capmark Xxxxxxx X. Bone and Xxxxx Financial, L.P. No
8 EHY None No
0 XXXX Xxxxx Xxxxxx Properties LLC No
10 Capmark Xxx Xxxxxx, Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxx No
11 LaSalle Triple Net Properties, LLC No
12 Capmark Xxxx Xxxxxx No
13 LaSalle Xxxxxxx X. Xxx and Xxxxxxx X. Xxxxxx No
14 Capmark Allstate Management Corp. No
14.01 Capmark Allstate Management Corp. No
14.02 Capmark Allstate Management Corp. No
14.03 Capmark Allstate Management Corp. No
14.04 Capmark Allstate Management Corp. No
14.05 Capmark Allstate Management Corp. No
15 LaSalle Xxxxxxx X. Xxx and Xxxxxxx X. Xxxxxx No
16 Capmark Xxxxxxx Xxxxxx, Xxxxx Xxxxxx No
17 LaSalle K-V Pharmaceutical Company, Inc.; ETHEX Corporation; Ther-Rx No
Corporation; Particle Dynamics, Inc.
17.01 LaSalle No
17.02 LaSalle No
17.03 LaSalle No
17.04 LaSalle No
18 JPMCB Colony Capital No
19 Capmark Double Eight Hospitality LLC No
20 JPMCB Xxxxx X. Xxxx 4,850,000.0
21 JPMCB Xxxxx X. Xxxxxxx, Xxxx X. & Xxxx X. Cleaner, Xxxxxx X. & Xxxxx No
Bava Xxxxxxx, Xxxxxxx & Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx &
Alaina Divine, Welsie L. & Xxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxx
Xxxxxx XxXxxxxxxx, Xx., Xxxxxxxx X. XxXxxxxxxx, Xxxxx X.
XxXxxxxxxx, Xxx XxXxxxxxxx Engval, Xxxxxxx XxXxxxxxxx Xxxxxxx,
Xxxx Xxxx, Xxxxxx X. & Xxxx X. Xxxx, Xxxxx X. & Xxxxx X.X. Xxx,
Xxxxxx X. & Xxx X. Xxxxxxxxxx, Xxxx & Xxxx Xxxxxx, Xxxx X. Xxxxxx
& Xxxxx X. Xxxxxxxxxx, Xxxx Xxxxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxx
Xxxxxxx
21.01 JPMCB Xxxxx X. Xxxxxxx, Xxxx X. & Xxxx X. Cleaner, Xxxxxx X. & Xxxxx No
Bava Xxxxxxx, Xxxxxxx & Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx &
Alaina Divine, Welsie L. & Xxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxx
Xxxxxx XxXxxxxxxx, Xx., Xxxxxxxx X. XxXxxxxxxx, Xxxxx X.
XxXxxxxxxx, Xxx XxXxxxxxxx Engval, Xxxxxxx XxXxxxxxxx Xxxxxxx,
Xxxx Xxxx, Xxxxxx X. & Xxxx X. Xxxx, Xxxxx X. & Xxxxx X.X. Xxx,
Xxxxxx X. & Xxx X. Xxxxxxxxxx, Xxxx & Xxxx Xxxxxx, Xxxx X. Xxxxxx
& Xxxxx X. Xxxxxxxxxx, Xxxx Xxxxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxx
Xxxxxxx
21.02 JPMCB Xxxxx X. Xxxxxxx, Xxxx X. & Xxxx X. Cleaner, Xxxxxx X. & Xxxxx No
Bava Xxxxxxx, Xxxxxxx & Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx &
Alaina Divine, Welsie L. & Xxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxx
Xxxxxx XxXxxxxxxx, Xx., Xxxxxxxx X. XxXxxxxxxx, Xxxxx X.
XxXxxxxxxx, Xxx XxXxxxxxxx Engval, Xxxxxxx XxXxxxxxxx Xxxxxxx,
Xxxx Xxxx, Xxxxxx X. & Xxxx X. Xxxx, Xxxxx X. & Xxxxx X.X. Xxx,
Xxxxxx X. & Xxx X. Xxxxxxxxxx, Xxxx & Xxxx Xxxxxx, Xxxx X. Xxxxxx
& Xxxxx X. Xxxxxxxxxx, Xxxx Xxxxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxx
Xxxxxxx
22 EHY Xxxxx Xxxxxxxxxx No
23 Capmark Xxxxxx Xxxxxx No
24 EHY Kimpton Hospitality Partners, L.P. No
25 NCCI Xxxxxx X. Xxxxxx No
26 Capmark Xxxxx X. Xxxxx No
27 EHY Kimpton Hospitality Partners, L.P. No
28 Capmark Xxxxxxx X. Xxxxxx and Xxx X. Xxxxxx No
29 LaSalle Inland Western Sugar Land Colony Limited Partnership and Inland No
Western Retail Real Estate Trust, Inc.
30 Capmark WRT Realty L.P. No
31 JPMCB Xxxx Xxxxxx, Xxxx X. Xxxxxxxxx, Xxxxx Xxxxx No
32 JPMCB Halston Mikail an Xxxxx Xxxx No
33 Capmark Xxxxx X. Xxxx No
33.01 Capmark Xxxxx X. Xxxx No
33.02 Capmark Xxxxx X. Xxxx No
34 LaSalle Victory Real Estate Investments, LLC 1,125,000.0
35 Capmark WRT Realty L.P. No
36 Capmark Xxxxx Xxxx, Xxxx Xxxxxx No
37 JPMCB Xxxxxxx X. Xxxxxxx and Xxxxxxx Xxxxxxx No
38 Capmark KUBS Income Fund I, LP, Hickory Ridge Village Center Business No
Trust, HRVC, LLC
39 Capmark Xxxxx X. Xxxx No
40 Capmark Xxxxxxx Xxxxxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx Xxxxx-Xxxxxxx, No
Xxxxxx X. Xxxxxxxxx
41 Capmark Xxxxx X. Xxxx No
41.01 Capmark Xxxxx X. Xxxx No
41.02 Capmark Xxxxx X. Xxxx No
42 Capmark Xxxxx X. Xxxx No
43 JPMCB First Industrial Realty Trust No
44 LaSalle Xxxxxxxx X. Xxxxxxxx; Xxxxxx X. Xxxxxxx, III; A.S. Xxxxx, II; No
Xxxxxx X. Xxxxxxx, Xx.; X. XxXxxx Xxxxxx, Jr.
45 LaSalle Homestead Land Holdings Limited 2,800,000.0
46 NCCI Xxxxxx X. Xxxxxx No
47 JPMCB First Industrial Realty Trust, Inc No
48 JPMCB Xxxxxxxx X. Xxxxx; Xxxxxxxx X. Xxxxxx; Xxxxxxxxx X. Xxxxx; Xxxx No
X. Xxxxxx; Xxxxx X. Xxxxxxx; Xxxxxx X. Xxxxxxx; Xxxxxxxxx X.
Xxxxxxx; Xxxxxx Xxxxxxxx; Xxxxx X. Xxxxxx; Xxxxxxxxx X.
Xxxxxx-Xxxxxx; Xxxxx Xxxx-Xxx Chuan; Xxxxx Xxxxxx; Xxxxxxx
Xxxxxx; Xxxxxxx X. Xxxx, XX; Xxxxx X. Xxxx; Gurpaljit X. Xxxx;
Xxxxxxxxx X. Xxxx; Xxxxxxx Xxxxxx Xxxxxxxx; Xxxxx Xxxxxxxxx
Xxxxxxxx; Xxxx X. Xxxxxxxx; Xxxxx X. Xxxxxxx; Xxxxxxxx X.
Xxxxxxx; Xxx X. Xxxxx; Xxxx Xxxxx; Xxxxxx Xxxx Xxxxxxx; Xxxxxxx
Xxx Xxxxxxx Xxxxx; Xxxx Xxxx Xxxxx; Xxxxx X. Xxxxxxx; Xxxxxx X.
Xxxx; Xxxxxxxxx X. Xxxx; Xxxxxx Xxxxxxx; Xxxxxx X. X. Xxxxxxx;
Xxxxxx X. Xxxxxx; Xxxxxx X. Xxxxxx; Xxxxxx X'Xxxxx; Xxx X'Xxxxx;
Xxxx X. Xxxxx; Xxxx X. Xxxxx; Xxxx Xxxxxxx; Xxxxxxxx Xxxxxxx;
Xxxxxx X. Xxxxx; Xxxxxxx Xxx Xxxxxxxxx; Xxxxxxx X. Xxxxxxx;
Xxxxxx X. Xxxxxxx; Xxxxx Xxxxxx; Xxxxxxx Xxxxxx; Xxxxx X. Xxxxx;
Xxxxx Xxxx Xxxxxxx; Xxxxxx Xxxxxxx Xxxxxxx; Xxxxxxx X. Xxxxxxx;
Street Xxxxxx; Xxxxxx X. Xxxxxx; Xxxxxx X. Xxxxxx; Xxxxx X.
Xxxxxxxxxxx
49 NCCI Xxxxxxx Xxxxx, Xxxx Xxxxxxx No
50 XxXxxxx Xxxxx Crossing 1031, L.L.C. and Inland Real Estate Exchange No
Corporation
51 Capmark KUBS Income Fund I, LP, Columbia Crossing I, LLC No
52 LaSalle Caplease Credit LLC No
53 Capmark KUBS Income Fund I, LP, DSVC Retail, LLC No
54 LaSalle MHC Operating Limited Partnership No
55 Capmark RLJ Urban Lodging Fund, L.P. and RLJ Urban Lodging Fund (PF #1), No
L.P.
56 JPMCB First Industrial Realty Trust, Inc No
00 Xxxxxxx Xxxx Hospitality, Inc. No
58 JPMCB Xxxxxx X. Xxxx No
59 NCCI Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx, No
Xxxxxxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxxxxx X. Xxxxxxxx
59.01 NCCI Xxxxxx Xxxxxxx, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.02 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.03 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.04 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.05 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.06 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.07 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.08 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.09 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.10 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.11 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.12 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.13 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.14 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.15 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.16 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.17 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.18 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.19 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.20 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.21 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.22 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.23 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.24 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.25 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.26 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.27 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
59.28 NCCI Farhad Khalili, Farzad Khalili, Geoff Mills, Brett Howard, No
Jonathan Margalit, Jena Margalit, Annette E. Schenley
60 JPMCB Lorenzo J. Cavaliere No
60.01 JPMCB Lorenzo J. Cavaliere No
60.02 JPMCB Lorenzo J. Cavaliere No
60.03 JPMCB Lorenzo J. Cavaliere No
60.04 JPMCB Lorenzo J. Cavaliere No
60.05 JPMCB Lorenzo J. Cavaliere No
60.06 JPMCB Lorenzo J. Cavaliere No
61 NCCI Food Circus Super Market of Middletown; Food Circus of Red Bank, No
Inc.; Food Circus of Wall, Inc.
61.01 NCCI Food Circus Super Market of Middletown; Food Circus of Red Bank, No
Inc.; Food Circus of Wall, Inc.
61.02 NCCI Food Circus Super Market of Middletown; Food Circus of Red Bank, No
Inc.; Food Circus of Wall, Inc.
62 NCCI James Gianulias 1,000,000.0
63 JPMCB Francis Rush No
64 EHY Peter Wolff and Fritz H. Wolff No
65 NCCI Inland American Malden, L.L.C. and Inland American Real Estate No
Trust, Inc.
66 Capmark American Spectrum Realty, Inc. No
67 NCCI Jannie H. Richardson No
68 NCCI GFW Trust and Adrian Goddard No
69 LaSalle Olivet Church 1031, L.L.C. and Inland Real Estate Exchange No
Corporation
70 JPMCB Dan G. Flaherty and Gemland Office Portfolio, LLC No
71 LaSalle AREO REIT, Ltd. No
72 Capmark Daniel Massry No
73 Capmark Richard Branca No
74 Capmark Bart Blatstein No
75 Capmark Allan V. Rose No
76 Capmark KUBS Income Fund I, LP, Village Center Business Trust No
77 EHY Lamar Western L.P. No
78 EHY Andrew Brog No
79 NCCI Inland American Swampscott, L.L.C. and Inland American Real No
Estate Trust, Inc.
80 Capmark Kenneth Levy, The Revocable Trust of Kenneth and Gloria Levy No
81 LaSalle Michael P. Cafagna and Mark P. Mandell No
82 EHY Herbert D. Weitzman No
83 EHY Albert A. Herrera, Christopher Lucius, Stephanie Carter, John No
Lucius, Debra Lucius
84 JPMCB Kevin A. Shields No
85 Capmark The Newkirk Master Limited Partnership No
86 LaSalle C. Michael Gibson, Dr. Daniel Elstein No
87 JPMCB George Hicker, Carl M. Buck No
88 JPMCB Albert A. Robin No
89 JPMCB Mohammed Ehsan No
90 LaSalle Eliot D. Cohen, Michael V. Harrell and Reed A. Miller No
91 NCCI Inland Western Retail Real Estate Trust, Inc. and Inland Western No
San Antonio HQ Limited Partnership
92 EHY Andrew Stewart, John Foresi No
93 JPMCB First Industrial Realty Trust No
94 JPMCB Nora Shophet, Behrouz Soroudi No
95 LaSalle MHC Operating Limited Partnership No
96 LaSalle Newport Property Apartment Ventures, Ltd. No
97 JPMCB HGGP Capital II, LLC No
98 Capmark F. Peter Herfurth, Sally O. Herfurth, The F. Peter Herfurth No
Revocable Trust and The Sally O. Herfurth Revocable Trust
99 NCCI Inland American Framingham, L.L.C. and Inland American Real No
Estate Trust, Inc.
100 Capmark Frank Galasso No
101 Capmark Gary Grabel, Mark Hamermesh and Aric Browne No
102 NCCI Thomas B. Brenneke, Kathleen Willis, Dwight Lippert, John Strong, No
Catherine M. Waller, Jacqueline Redding, David Redding, Suzanne
Benner, Michael Benner, Carol E. Ratzlaf, Kyong Bok Shim, Riyadh
Taila, Adam Forester
103 Capmark Daniel Massry No
104 Capmark RLJ Urban Lodging Fund, L.P. and RLJ Urban Lodging Fund (PF#1) No
105 JPMCB Richard M. Bassett No
106 LaSalle Robert E. Smietana, John E. Shaffer, Melissa S. Pielet No
107 LaSalle John A. Bonutto No
108 JPMCB Guy E. Beatty No
109 NCCI Inland American Bristol, L.L.C. and Inland American Real Estate No
Trust, Inc.
110 JPMCB Antun H. Domit No
111 JPMCB Michael Belfonti No
112 NCCI Gus A. Chafoulias No
113 JPMCB Samuel H. Brown No
114 JPMCB Martin A. Friedman and Herbert J. Friedman 825,000.0
115 LaSalle Michael P. Cafagna and Mark P. Mandell No
116 LaSalle Sentry Office Building DBTand Inland Real Estate Exchange No
Corporation
117 LaSalle Gary J. Davies and David P. Hill No
118 JPMCB Karen Domit Stephens and Milton G. Domit Management Trust No
119 LaSalle MHC Operating Limited Partnership No
120 JPMCB Debra J. Pyzyk No
121 LaSalle Edna F. Meyer-Nelson No
122 LaSalle Michael G. Peterson No
123 LaSalle Fu Hsing Chen and Jyu Yuan Chen No
124 LaSalle Rodney L. Savoy, Robert J. Gagnard, Robert W. Daigle No
125 LaSalle E. Allen Brown, Jr. No
126 EHY Meyer Orbach No
127 LaSalle MHC Operating Limited Partnership No
128 JPMCB Moise Hendeles 485,000.0
129 JPMCB Charles E. Douthit No
130 Capmark Brock J. Vinton and David Grayson 392,943.0
131 JPMCB John A. Henry & Co., Ltd. No
132 NCCI None No
133 LaSalle Rajpal S. Grewal, Kanwalpreet K. Grewal No
134 JPMCB Richard B. Broder and Todd Sachse No
135 JPMCB Nishith G. Patel No
136 Capmark Bresler & Reiner, Inc. No
137 LaSalle John L. Baldwin No
138 LaSalle David A. Krone, William Heller, Solcyman Kahen No
139 EHY David R. Black No
140 Capmark John F. Paino and Dolores Paino No
141 JPMCB Daniel D. Burack and Earle S. Altman No
142 JPMCB Daniel D. Burack and Earle S. Altman No
143 JPMCB First Industrial Realty Trust Inc. No
144 JPMCB Martin A. Friedman and Herbert J. Friedman No
145 Capmark Allan V. Rose No
146 LaSalle Michael D. Shmerling 104,787.0
147 Capmark Robert L. Lloyd No
148 NCCI Eric M. Thies, Richard M. Fleenor, Stephen M. Dunn No
149 EHY Philip Pilevsky 650,000.0
150 Capmark Sidney Corrie No
151 LaSalle Maria Letsos No
152 LaSalle Newport Property Apartment Ventures, Ltd. No
153 Capmark Stephen J. Muller, Jon M. Muller No
154 Capmark Larry C. Register No
154.01 Capmark Larry C. Register No
154.02 Capmark Larry C. Register No
154.03 Capmark Larry C. Register No
154.04 Capmark Larry C. Register No
155 Capmark Gary Fernandes No
156 LaSalle Rushi B. Patel, Rupam R. Pateder No
157 NCCI Robert D. Salmen No
158 NCCI Patrick T. Gillean No
159 LaSalle MHC Operating Limited Partnership No
160 LaSalle William R. Beckman No
161 LaSalle George W. Ragsdale No
162 LaSalle Richard M. Karp and Arbaugh Development Company LLC No
163 NCCI Steven H. Dukatt 1,000,000.0
164 JPMCB David L. Johnson No
165 LaSalle MHC Operating Limited Partnership No
166 LaSalle Alvin O. Benton, W. Richard Russell, Brian D. Benton No
167 JPMCB Michael Schlesinger No
168 JPMCB Robert B. Connor, Jr, Richard L. Elwood, Mark S. Elwood, and No
William W. Walker IV
169 JPMCB Richard Cutler No
170 JPMCB R. Clayton Emory and William B. Rinnier, Sr. No
171 JPMCB Anil V. Shah and Preeti Shah No
172 JPMCB Richard C. Barrett, Virginia L. Barrett No
173 LaSalle Reginald C. Spain and Bonita B. Spain 45,000.0
174 LaSalle William E. Eiseman & David Keren No
175 NCCI Watt Commercial Enterprises, LLC No
176 LaSalle Michael V. Harrell and Robert M. Rogers No
177 Capmark Craig P. Duhs, Traci A. Duhs, The 2005 Duhs Family Living Trust No
Dated 2/3/05, Scott D. Duhs, Marci A. Duhs and The Duhs Revocable
Living Trust
178 NCCI Laith F. Jonna and Faik Esshaki No
179 Capmark Darryl J. Lyles, Robert L. Lloyd No
180 NCCI Amir H. Farahany, Afsaneh Farahany No
181 NCCI Leonard L. Grossman No
181.01 NCCI Leonard L. Grossman No
181.02 NCCI Leonard L. Grossman No
182 JPMCB Edith Michalke, Gernot Michalke No
183 NCCI Jannie Ho Duk Richardson; The Srko Family Limited Partnership No
184 Capmark Charles Chapman No
185 Capmark Don Cafiero and Robert Sichelstiel No
186 NCCI Yury Gampel No
187 NCCI Theodore F. Beresford No
188 Capmark Richard B. Francis, John R. Francis, The R.B. Francis Family 1994 No
Trust, The J&B Francis Family Trust
189 JPMCB Joseph Milellli No
190 JPMCB Edward Turrentine and Patricia Ann Turrentine No
191 NCCI Jack Rosenzweig, Clifford J. Dovitz, Marc Rosenzweig, Todd No
Rosenzweig
192 LaSalle George R. Walker III & George R. Walker Jr. No
193 JPMCB William B. Adams, Frank B. Houseman No
194 NCCI Kim W. Eggleston No
195 JPMCB Todd J. Plastino and Theresa K. Plastino No
196 NCCI DBSI Housing Inc., Douglas L. Swenson, James A. Callahan IV, John No
T. Ezell & Margaret A. Ezell, Kim Elaine Fleming, Juan P.
Gonzalez & Kimberly N. Gonzalez, Isabel M. Greco, Sam J. Greco,
Elizabeth P. Haren, Thomas M. Haren, Thomas M. Haren, Marilyn L.
Howard, Richard H. Hurst & Donald J. Hurst, Kenneth L. Isenberg &
Gretchen G. Isenberg, Mark L. Lana, Larry E. Martin, Andrew G.
Meyers, Jr. & Holly N. Meyers, John Michopoulos, Robert B. Moore
& Betty Moore, Jack D. Patterson & Frances L. Patterson, Thomas
E. Pierce & Charlotte T. Pierce, Susan Leaming Pollish, Allan L.
Rhoades, Nina B. Rowe, Kristin Scharf, Robert A. Sinker &
Patricia F. Sinker, Pauline F. Spyridis, Randy A. Stangler
197 Capmark Michael D. Gorge No
198 LaSalle Inland Western Hellertown Main Street DST and Inland Western No
Retail Real Estate Trust, Inc.
199 LaSalle Inland Western Lebanon 9th Street DST and Inland Western Retail No
Real Estate Trust, Inc.
200 LaSalle Charles W. Merrill, Anthony C. Merrill No
201 Capmark David Lindahl, Trish O'Connell, Dorothy Goodsun, Mary Lee Carter, No
Gary Edwards, Ed Oliver, Craig Picard, Peter Cassidy, Gail
McCarthy, Brian Shelton, Rob Saelens, Janice Chai-Chang, Brett
Lewis, Jenneill Delp, Darla Lacy, Janelle Bledsoe, James Cassidy,
Donna E. Mee, Sean Burke, Charles Russell and Donald Goff
202 LaSalle Inland Western Punxsutawney Mahoning Street DST and Inland No
Western Retail Real Estate Trust, Inc.
203 JPMCB William L. Hysinger and James M. Mulrooney No
204 Capmark Richard B. Francis, John R. Francis, The R.B. Francis Family 1994 No
Trust, The J&B Francis Family Trust
205 LaSalle Barry L. Haase, Philip S. Moreau No
206 LaSalle Arvind Goel 50,000.0
207 LaSalle Gary Abriola, Dennis J. Abriola, Ronald V. Abriola No
208 JPMCB Stephen J. Dwyer, Susan Dwyer, Donald L. Beeks and Diana L. Beeks No
209 LaSalle Richard P. Mosesian, Charles S. Mosesian No
210 LaSalle Joe L. Finley No
211 LaSalle Richard C. Sorensen and Laura L. Sorensen No
212 JPMCB Bradley A. Hoyt No
213 LaSalle Michael D. Shmerling 49,526.0
214 JPMCB Roy E. Stanley; J.E. Lindsey Family Limited Partnership; Harber No
Investments Family Trust; Cuozzo Family Investments, A Limited
Partnership; Fowler Family Investments, LLC
215 NCCI Harold M. Spivock, Munroe Spivock No
216 LaSalle Joel I. McCloud & Kenneth J. Friedenthal No
217 Capmark Jeffrey Todd Palmer and J. Sydney Cook III No
218 Capmark Richard E. Sikorski, Karen R. Sikorski and The Richard E. No
Sikorski and Karen R. Sikorski Living Trust
219 Capmark Gene Montesano and Arlene Montesano No
220 NCCI Fahim Shah No
221 Capmark Robert L. Lloyd, William Kirk Hannon No
222 LaSalle Long T. Chau No
223 Capmark Ronald A. Ubaldi, Duane Berndt, Wendy M. Berndt and The Ubaldi No
Living Trust dated July 19, 1993
224 LaSalle Albert Belmonte No
225 LaSalle Lismore T. Maino No
226 LaSalle Lismore T. Maino No
227 LaSalle MHC Operating Limited Partnership No
228 NCCI Cynthia D. Knowles, William W. Knowles No
229 Capmark Tae Suk Chong, Ok Chom Chong, and The Tae Suk Chong and Ok Chom No
Chong Revocable Trust
230 Capmark Richard B. Francis, John R. Francis, The Richard B. Francis Trust No
of 2005, The J&B Francis Family Trust
231 LaSalle MHC Operating Limited Partnership No
232 Capmark Robert L. Lloyd No
233 LaSalle Albert Belmonte No
233.01 LaSalle No
233.02 LaSalle No
234 Capmark John R. Dunlap, Jr. No
235 NCCI Yury Gampel No
236 LaSalle Robert D. Walner and Cathie F. Simonieg No
237 NCCI Kurtis P. Keeney, Nathaniel Smith, Alice Sparks, Dennis R. No
Williams
238 LaSalle Douglas M. Clayton No
239 NCCI Theodore F. Beresford No
240 LaSalle Sam Nazarian No
241 LaSalle Jean-Pierre Di Blasio, Joseph Santoianni No
242 NCCI Alan Light No
243 EHY Gary Solomon No
244 EHY Mendi Reich No
245 LaSalle Billie Lynn Daniels No
245.01 LaSalle No
245.02 LaSalle No
246 Capmark Robert L. Lloyd No
247 NCCI Anne M. Schwerdt No
248 NCCI Gary W. Wagner No
248.01 NCCI Gary W. Wagner No
248.02 NCCI Gary W. Wagner No
249 NCCI Martin J. Weber, Kenneth M. Raymond, Jr. No
250 NCCI J. Timothy McGinley, R. Douglas Sylvester, Michael D. Emkes No
251 LaSalle Ralph H. Owens No
252 Capmark Samuel Yu and Mirah Yu No
253 NCCI Edwardo Ortes No
254 Capmark Robert L. Lloyd, William Kirk Hannon No
255 LaSalle Eric Rinkoff No
256 LaSalle Richard T. Gallacher No
257 LaSalle Virginia A. Hepner, David Littlefield, Ralph Gilbert No
258 LaSalle Alan Weiss No
259 LaSalle Jon D. Heard and James C. Heard No
260 LaSalle Ralph E. Lord No
261 LaSalle Alan DeRose No
262 LaSalle Beatrice B. Slater No
263 LaSalle Theodore J. Mintz, Annabelle L. Mintz, Richard O. Mabie, Ruth M. No
Mabie
264 Capmark Robert L. Lloyd No
265 LaSalle David A. Winograd, Kevin S. Paykel No
266 Capmark Wendy M. Berndt, Duane Berndt, Ronald A. Ubaldi, The Ubaldi No
Living Trust dated July 19, 1993, and Kenneth G. Waterhouse
267 LaSalle W. Richard Matherly No
268 LaSalle Nassim H. Mussry, Sol N. Mussry, Ruth E. Mussry 50,000.0
269 NCCI Julian Ruiz, Jr. and Cherie Ruiz No
UPFRONT ESCROW
---------------------------------------------------------------------------------------------------------------------
Upfront Upfront Upfront Upfront Upfront Upfront Upfront
CapEx Eng. Envir. TI/LC RE Tax Ins. Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve Reserve
-----------------------------------------------------------------------------------------------------------------------------------
1 0.00 70,400.00 0.00 0.00 0.00 0.00 0.00
1.01
1.02
1.03
1.04
1.05
2 0.00 903,006.00 0.00 31,000,000.00 7,007,181.38 0.00 11,807,000.00
2.01
2.02
3 0.00 0.00 0.00 0.00 1,190,342.43 173,060.00 3,000,000.00
4 0.00 3,800,000.00 0.00 0.00 144,975.00 69,708.00 0.00
5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
5.01
5.02
5.03
5.04
5.05
5.06
6 0.00 0.00 0.00 0.00 1,316,617.00 0.00 0.00
7 986,021.43 0.00 0.00 0.00 175,115.86 897,155.09 0.00
8 0.00 251,625.00 0.00 0.00 148,941.17 20,135.42 615,117.00
9 0.00 0.00 0.00 0.00 212,816.08 0.00 0.00
10 0.00 78,125.00 0.00 0.00 677,585.43 147,117.92 565,000.00
11 0.00 100,000.00 0.00 0.00 1,697,830.85 82,113.20 0.00
12 0.00 0.00 0.00 0.00 163,718.92 56,004.12 0.00
13 0.00 72,875.00 0.00 2,000,000.00 407,902.56 5,878.60 0.00
14 0.00 0.00 0.00 0.00 42,420.99 120,076.44 0.00
14.01
14.02
14.03
14.04
14.05
15 0.00 0.00 0.00 2,000,000.00 103,042.89 78,947.44 0.00
16 0.00 28,894.00 0.00 0.00 0.00 0.00 0.00
17 0.00 0.00 0.00 0.00 0.00 0.00 0.00
17.01
17.02
17.03
17.04
18 0.00 0.00 0.00 0.00 0.00 0.00 0.00
19 0.00 0.00 0.00 0.00 0.00 0.00 0.00
20 0.00 64,438.00 0.00 0.00 267,529.35 12,337.50 0.00
21 0.00 0.00 0.00 2,000,000.00 29,669.77 19,784.00 0.00
21.01
21.02
22 0.00 15,651.00 0.00 0.00 49,299.42 13,503.00 182,583.33
23 0.00 145,487.50 366,465.76 0.00 77,818.45 10,972.90 0.00
24 0.00 115,625.00 0.00 30,000.00 78,325.83 0.00 1,500,000.00
25 0.00 0.00 0.00 0.00 158,018.87 57,458.22 0.00
26 0.00 0.00 0.00 500,000.00 63,079.95 31,050.00 1,065,800.00
27 0.00 130,313.00 0.00 0.00 125,206.60 0.00 0.00
28 0.00 0.00 0.00 0.00 79,456.78 29,140.38 0.00
29 0.00 0.00 0.00 0.00 0.00 0.00 0.00
30 0.00 0.00 0.00 0.00 171,138.59 32,296.60 382,020.00
31 0.00 31,974.00 40,000.00 0.00 59,364.96 0.00 0.00
32 0.00 0.00 0.00 0.00 0.00 27,171.75 0.00
33 1,000.00 0.00 0.00 0.00 1,000.00 0.00 0.00
33.01
33.02
34 0.00 0.00 0.00 200,000.00 278,755.10 8,298.33 0.00
35 0.00 0.00 0.00 0.00 0.00 0.00 0.00
36 47,000.00 0.00 0.00 175,000.00 70,713.98 13,493.60 160,000.00
37 0.00 1,312.50 0.00 181,716.00 46,506.34 2,288.33 0.00
38 0.00 0.00 0.00 0.00 210,436.43 0.00 0.00
39 1,000.00 0.00 0.00 0.00 70,280.94 0.00 0.00
40 1,000.00 0.00 0.00 0.00 132,148.42 71,359.08 29,548.00
41 1,000.00 0.00 0.00 0.00 99,000.00 0.00 0.00
41.01
41.02
42 1,000.00 0.00 0.00 0.00 244,311.32 0.00 0.00
43 0.00 0.00 0.00 0.00 0.00 0.00 0.00
44 0.00 0.00 0.00 2,242,915.00 117,452.00 16,436.16 500,000.00
45 0.00 15,625.00 0.00 0.00 0.00 0.00 0.00
46 0.00 0.00 0.00 0.00 34,240.31 64,500.00 0.00
47 0.00 0.00 0.00 0.00 0.00 0.00 0.00
48 200,000.00 0.00 0.00 0.00 110,994.82 7,806.85 0.00
49 0.00 343,750.00 0.00 0.00 79,394.40 8,141.23 353,480.00
50 0.00 0.00 0.00 0.00 0.00 0.00 0.00
51 0.00 0.00 0.00 0.00 174,807.26 0.00 0.00
52 0.00 0.00 0.00 0.00 0.00 0.00 0.00
53 0.00 0.00 0.00 0.00 186,525.23 0.00 0.00
54 0.00 0.00 0.00 0.00 0.00 0.00 0.00
55 1,000.00 0.00 0.00 0.00 32,097.10 19,598.28 0.00
56 0.00 0.00 0.00 0.00 0.00 0.00 0.00
57 200.00 0.00 0.00 0.00 61,555.05 31,753.32 1,100,000.00
58 0.00 0.00 0.00 0.00 122,000.00 81,311.00 0.00
59 0.00 34,672.00 0.00 0.00 30,712.75 7,421.83 0.00
59.01
59.02
59.03
59.04
59.05
59.06
59.07
59.08
59.09
59.10
59.11
59.12
59.13
59.14
59.15
59.16
59.17
59.18
59.19
59.20
59.21
59.22
59.23
59.24
59.25
59.26
59.27
59.28
60 0.00 0.00 0.00 0.00 223,999.06 18,561.00 600,000.00
60.01
60.02
60.03
60.04
60.05
60.06
61 0.00 85,000.00 0.00 0.00 38,672.67 0.00 0.00
61.01
61.02
62 0.00 166,250.00 0.00 0.00 0.00 0.00 0.00
63 0.00 0.00 0.00 0.00 38,084.00 7,547.00 0.00
64 2,523.00 5,919.00 0.00 0.00 43,404.50 4,254.00 0.00
65 0.00 0.00 0.00 0.00 0.00 0.00 0.00
66 0.00 14,275.00 0.00 0.00 59,197.75 36,268.00 33,000.00
67 0.00 0.00 0.00 125,000.00 0.00 17,248.00 2,100,000.00
68 0.00 21,605.00 0.00 0.00 40,776.24 2,250.00 0.00
69 0.00 0.00 0.00 0.00 0.00 0.00 0.00
70 0.00 0.00 0.00 300,000.00 193,269.27 57,626.83 0.00
71 0.00 0.00 0.00 101,490.00 107,098.49 3,190.03 0.00
72 0.00 750,000.00 0.00 250,000.00 25,173.50 7,158.70 0.00
73 0.00 0.00 0.00 0.00 69,351.75 7,861.40 0.00
74 0.00 0.00 0.00 0.00 1,618.31 4,500.35 0.00
75 1,000.00 0.00 0.00 0.00 108,581.69 0.00 0.00
76 0.00 0.00 0.00 0.00 106,519.07 0.00 0.00
77 0.00 58,125.00 0.00 0.00 52,010.16 12,167.12 10,000.00
78 0.00 1,075.00 0.00 175,000.00 27,288.00 0.00 0.00
79 0.00 0.00 0.00 0.00 0.00 0.00 0.00
80 298,711.00 14,750.00 0.00 0.00 61,021.92 26,290.16 0.00
81 0.00 6,375.00 0.00 0.00 10,769.29 12,770.33 0.00
82 538 2,500.00 0.00 778,163.00 118,500.00 7,854.00 0.00
83 675.95 0.00 0.00 143,208.75 9,000.00 7,005.00 122,981.00
84 750,000.00 0.00 0.00 0.00 0.00 0.00 0.00
85 0.00 0.00 0.00 0.00 53,779.47 13,289.24 428,688.00
86 0.00 0.00 0.00 0.00 20,813.83 18,138.29 0.00
87 0.00 0.00 0.00 0.00 0.00 0.00 0.00
88 0.00 0.00 0.00 0.00 0.00 0.00 0.00
89 0.00 226,625.00 0.00 0.00 17,515.48 9,287.00 0.00
90 0.00 7,500.00 0.00 0.00 54,614.72 0.00 0.00
91 0.00 0.00 0.00 0.00 0.00 0.00 0.00
92 7,500.00 0.00 0.00 0.00 131,250.00 7,893.32 600,000.00
93 0.00 150,000.00 0.00 0.00 0.00 0.00 581,217.49
94 0.00 0.00 0.00 110,000.00 7,573.35 2,756.66 0.00
95 0.00 0.00 0.00 0.00 0.00 0.00 0.00
96 0.00 0.00 0.00 0.00 15,995.37 0.00 0.00
97 0.00 0.00 0.00 0.00 8,824.15 14,500.00 0.00
98 0.00 0.00 0.00 2,745,000.00 0.00 0.00 605,000.00
99 0.00 0.00 0.00 0.00 0.00 0.00 0.00
100 0.00 0.00 0.00 0.00 30,990.27 21,334.15 0.00
101 0.00 0.00 0.00 0.00 0.00 18,819.85 0.00
102 0.00 0.00 0.00 0.00 83,454.29 1,777.00 0.00
103 0.00 259,937.50 65,000.00 0.00 0.00 2,106.07 0.00
104 1,000.00 0.00 0.00 0.00 4,989.99 25,277.60 0.00
105 0.00 0.00 0.00 0.00 22,124.25 30,232.50 0.00
106 45,187.50 54,812.50 0.00 300,000.00 0.00 6,269.90 0.00
107 0.00 0.00 0.00 0.00 15,600.00 5,110.30 500,000.00
108 0.00 8,250.00 0.00 0.00 52,770.36 24,664.50 0.00
109 0.00 0.00 0.00 0.00 0.00 0.00 0.00
110 25,200.00 0.00 0.00 0.00 45,189.04 28,533.81 0.00
111 0.00 38,945.00 0.00 0.00 86,234.11 55,493.33 0.00
112 0.00 0.00 0.00 0.00 107,073.17 3,623.17 0.00
113 0.00 0.00 0.00 0.00 78,340.00 2,789.25 0.00
114 0.00 88,562.00 0.00 0.00 14,200.90 10,168.64 310,000.00
115 0.00 7,158.75 0.00 0.00 19,315.56 28,213.90 0.00
116 0.00 0.00 0.00 0.00 0.00 0.00 0.00
117 0.00 24,837.50 0.00 0.00 0.00 1,247.05 116,810.40
118 0.00 19,188.00 0.00 0.00 0.00 0.00 15,000.00
119 0.00 0.00 0.00 0.00 0.00 0.00 0.00
120 0.00 0.00 0.00 0.00 31,551.00 6,335.50 0.00
121 0.00 25,243.75 0.00 0.00 53,716.18 20,854.86 30,310.00
122 0.00 0.00 0.00 0.00 0.00 14,324.27 250,000.00
123 0.00 12,500.00 0.00 0.00 8,385.50 9,200.10 0.00
124 0.00 0.00 0.00 0.00 18,720.00 0.00 0.00
125 0.00 0.00 0.00 0.00 41,194.94 1,486.51 0.00
126 0.00 35,700.00 0.00 0.00 33,120.00 7,802.50 40,000.00
127 0.00 0.00 0.00 0.00 0.00 0.00 0.00
128 0.00 243,716.00 0.00 0.00 18,976.67 13,650.38 4,900.00
129 60,000.00 50,958.75 0.00 0.00 39,741.33 20,014.17 0.00
130 0.00 0.00 0.00 0.00 2,586.63 2,363.68 0.00
131 0.00 122,290.31 0.00 0.00 6,485.98 9,914.67 0.00
132 0.00 0.00 0.00 0.00 0.00 0.00 0.00
133 0.00 0.00 0.00 0.00 60,835.84 3,414.84 0.00
134 0.00 0.00 0.00 0.00 122,869.26 2,344.00 0.00
135 0.00 0.00 0.00 0.00 37,205.71 30,037.17 0.00
136 0.00 36,000.00 0.00 0.00 49,562.30 13,871.32 0.00
137 0.00 0.00 0.00 0.00 0.00 0.00 0.00
138 0.00 4,500.00 0.00 0.00 72,650.50 1,893.15 0.00
139 843.32 4,119.00 0.00 360,000.00 0.00 10,825.98 67,650.00
140 0.00 20,000.00 0.00 0.00 0.00 0.00 0.00
141 0.00 0.00 0.00 0.00 0.00 0.00 0.00
142 0.00 0.00 0.00 0.00 0.00 0.00 0.00
143 0.00 0.00 0.00 0.00 0.00 0.00 0.00
144 0.00 0.00 0.00 0.00 6,020.48 9,018.00 0.00
145 1,000.00 0.00 0.00 0.00 109,061.04 0.00 0.00
146 0.00 0.00 0.00 0.00 0.00 947.79 0.00
147 0.00 0.00 0.00 0.00 21,296.28 2,882.03 0.00
148 0.00 0.00 0.00 0.00 22,722.25 1,182.67 0.00
149 0.00 0.00 0.00 0.00 26,525.40 21,698.33 0.00
150 0.00 0.00 200,000.00 0.00 23,239.52 6,519.45 0.00
151 0.00 0.00 0.00 0.00 0.00 0.00 38,575.00
152 0.00 0.00 0.00 0.00 9,217.22 0.00 0.00
153 0.00 456,492.00 0.00 0.00 0.00 4,833.44 0.00
154 0.00 0.00 0.00 0.00 10,562.20 18,347.51 0.00
154.01
154.02
154.03
154.04
155 0.00 0.00 0.00 50,000.00 25,322.80 5,234.30 0.00
156 0.00 0.00 0.00 0.00 26,456.78 12,948.00 0.00
157 0.00 0.00 0.00 0.00 58,983.17 1,761.08 0.00
158 0.00 0.00 0.00 0.00 64,920.75 34,021.22 0.00
159 0.00 32,400.00 0.00 0.00 0.00 0.00 0.00
160 0.00 0.00 0.00 0.00 6,854.58 5,446.65 0.00
161 0.00 0.00 0.00 0.00 25,701.21 4,715.62 0.00
162 0.00 0.00 0.00 0.00 3,825.30 10,660.00 270,000.00
163 0.00 0.00 0.00 0.00 33,846.28 6,948.00 0.00
164 0.00 0.00 0.00 0.00 74,806.89 2,155.43 0.00
165 0.00 0.00 0.00 0.00 0.00 0.00 0.00
166 0.00 0.00 0.00 0.00 0.00 0.00 0.00
167 120,000.00 69,375.00 0.00 200,000.00 5,674.13 7,680.06 323,555.00
168 0.00 9,500.00 0.00 0.00 36,048.74 30,916.57 0.00
169 0.00 0.00 0.00 0.00 54,434.67 1,640.75 58,000.00
170 0.00 0.00 0.00 0.00 46,604.89 5,755.60 0.00
171 0.00 0.00 0.00 100,000.00 5,494.17 2,239.50 0.00
172 0.00 0.00 0.00 0.00 9,353.75 805.33 75,000.00
173 0.00 27,125.00 0.00 0.00 5,264.92 22,891.33 0.00
174 0.00 0.00 0.00 90,000.00 31,368.95 1,091.31 150,000.00
175 0.00 1,250.00 0.00 0.00 13,386.08 0.00 25,000.00
176 0.00 0.00 0.00 0.00 47,816.21 0.00 0.00
177 0.00 0.00 0.00 130,600.00 1,473.22 3,290.78 0.00
178 0.00 0.00 0.00 0.00 14,681.67 2,127.92 0.00
179 0.00 0.00 0.00 0.00 24,799.67 3,281.43 0.00
180 0.00 71,250.00 0.00 0.00 45,055.09 39,042.00 3,086.00
181 0.00 0.00 15,000.00 0.00 57,835.13 4,773.33 0.00
181.01
181.02
182 0.00 0.00 0.00 75,000.00 0.00 0.00 0.00
183 0.00 0.00 0.00 0.00 8,344.21 9,843.22 160,935.50
184 0.00 3,875.00 0.00 0.00 9,210.76 18,722.10 0.00
185 0.00 0.00 0.00 0.00 31,726.97 3,395.33 200,000.00
186 0.00 3,125.00 0.00 0.00 12,920.03 3,525.00 927.50
187 174,266.00 3,750.00 0.00 0.00 48,512.90 4,422.75 0.00
188 0.00 0.00 0.00 0.00 0.00 0.00 0.00
189 0.00 9,276.25 0.00 0.00 36,906.48 1,208.33 0.00
190 0.00 49,125.00 0.00 0.00 0.00 4,532.83 0.00
191 0.00 25,000.00 0.00 0.00 28,048.46 836.83 0.00
192 0.00 18,750.00 0.00 0.00 15,840.34 2,407.50 0.00
193 0.00 0.00 0.00 0.00 29,113.50 13,709.58 0.00
194 0.00 0.00 0.00 0.00 6,479.75 1,537.83 0.00
195 0.00 0.00 0.00 0.00 0.00 0.00 0.00
196 0.00 7,500.00 0.00 0.00 93,088.33 1,506.67 0.00
197 0.00 0.00 0.00 0.00 0.00 0.00 0.00
198 0.00 0.00 0.00 0.00 0.00 0.00 0.00
199 0.00 0.00 0.00 0.00 0.00 0.00 0.00
200 0.00 0.00 0.00 0.00 0.00 0.00 0.00
201 0.00 6,250.00 0.00 0.00 10,669.00 6,059.95 0.00
202 0.00 0.00 0.00 0.00 0.00 0.00 0.00
203 0.00 3,125.00 0.00 0.00 16,261.00 1,752.75 0.00
204 0.00 0.00 0.00 0.00 0.00 0.00 0.00
205 0.00 0.00 0.00 0.00 6,378.50 3,849.91 24,129.98
206 0.00 0.00 0.00 0.00 8,638.93 1,044.51 0.00
207 0.00 0.00 0.00 0.00 4,291.51 1,729.00 0.00
208 0.00 0.00 0.00 0.00 17,510.33 4,580.85 0.00
209 0.00 0.00 0.00 0.00 1,616.48 1,067.56 10,965.00
210 0.00 0.00 0.00 0.00 5,936.42 4,988.88 0.00
211 0.00 1,375.00 0.00 0.00 33,744.65 15,630.16 0.00
212 0.00 0.00 0.00 50,000.00 18,984.47 1,564.23 0.00
213 0.00 0.00 0.00 0.00 0.00 749.15 0.00
214 0.00 0.00 0.00 0.00 0.00 4,815.97 0.00
215 6,100.00 0.00 0.00 30,000.00 7,443.95 653.75 0.00
216 0.00 0.00 0.00 0.00 6,530.64 951.38 6,160.00
217 0.00 10,156.00 0.00 0.00 7,163.10 3,716.12 0.00
218 0.00 0.00 0.00 200,000.00 14,774.25 744.26 0.00
219 0.00 0.00 0.00 0.00 1,164.27 1,544.96 0.00
220 0.00 0.00 375.00 0.00 10,753.01 7,199.17 54,937.50
221 0.00 5,625.00 0.00 0.00 9,241.00 1,727.88 0.00
222 0.00 0.00 25,000.00 0.00 18,017.76 3,683.33 0.00
223 0.00 0.00 0.00 0.00 3,492.06 4,734.59 0.00
224 0.00 38,813.00 0.00 0.00 9,622.22 5,276.18 0.00
225 0.00 0.00 0.00 0.00 14,976.00 3,992.91 0.00
226 0.00 0.00 0.00 0.00 14,725.97 1,564.68 0.00
227 0.00 11,800.00 0.00 0.00 0.00 0.00 0.00
228 0.00 625.00 0.00 50,000.00 7,708.00 8,113.50 0.00
229 0.00 0.00 0.00 0.00 5,128.14 873.80 0.00
230 0.00 0.00 0.00 0.00 7,200.46 0.00 0.00
231 0.00 0.00 0.00 0.00 0.00 0.00 0.00
232 0.00 4,437.50 0.00 0.00 8,236.85 1,696.96 0.00
233 0.00 22,813.00 0.00 0.00 13,766.90 10,708.10 0.00
233.01
233.02
234 0.00 37,500.00 0.00 0.00 7,272.18 4,170.78 0.00
235 0.00 0.00 0.00 0.00 1,009.67 1,719.17 0.00
236 0.00 10,313.00 0.00 0.00 15,421.55 6,115.20 0.00
237 0.00 0.00 0.00 0.00 3,791.67 7,471.08 0.00
238 0.00 0.00 0.00 0.00 9,779.70 928.72 0.00
239 0.00 4,375.00 0.00 0.00 7,136.78 5,920.50 0.00
240 0.00 3,125.00 0.00 0.00 3,301.82 34,091.20 0.00
241 0.00 6,375.00 0.00 0.00 28,353.42 3,030.21 0.00
242 0.00 0.00 0.00 0.00 862.62 420.84 0.00
243 0.00 0.00 0.00 0.00 0.00 0.00 0.00
244 0.00 56,625.00 0.00 0.00 14,589.67 2,378.00 34,468.10
245 0.00 0.00 0.00 0.00 24,632.30 17,106.78 0.00
245.01
245.02
246 0.00 0.00 0.00 0.00 9,809.05 1,263.80 0.00
247 0.00 0.00 0.00 0.00 0.00 0.00 0.00
248 0.00 0.00 0.00 0.00 2,353.26 678.00 0.00
248.01
248.02
249 50,000.00 3,750.00 0.00 0.00 14,476.73 2,391.48 8,000.00
250 0.00 4,500.00 0.00 0.00 3,644.75 6,933.24 0.00
251 0.00 0.00 0.00 0.00 1,157.76 5,308.77 0.00
252 0.00 0.00 0.00 0.00 20,182.00 2,967.71 16,208.74
253 0.00 650.00 0.00 0.00 2,556.56 813.34 0.00
254 0.00 12,500.00 0.00 0.00 6,210.04 1,318.20 0.00
255 0.00 0.00 0.00 0.00 5,631.25 1,669.98 0.00
256 0.00 0.00 0.00 0.00 6,636.41 1,433.47 0.00
257 0.00 0.00 0.00 0.00 7,426.06 1,273.13 0.00
258 0.00 0.00 0.00 0.00 8,241.36 5,020.70 0.00
259 0.00 7,812.50 0.00 0.00 7,749.79 1,912.39 0.00
260 0.00 0.00 0.00 0.00 4,062.16 2,961.92 0.00
261 0.00 0.00 25,000.00 0.00 0.00 8,674.64 0.00
262 0.00 0.00 0.00 0.00 0.00 0.00 0.00
263 0.00 0.00 0.00 0.00 0.00 0.00 0.00
264 0.00 0.00 0.00 0.00 4,729.28 543.69 0.00
265 0.00 0.00 0.00 0.00 0.00 0.00 0.00
266 0.00 0.00 0.00 0.00 1,896.23 2,565.30 0.00
267 0.00 0.00 0.00 0.00 16,921.14 499.37 0.00
268 0.00 0.00 0.00 0.00 11,698.98 712.40 11,000.00
269 0.00 37,500.00 0.00 0.00 4,147.67 981.45 1,575.00
MONTHLY ESCROW
---------------------------------------------------------------------------------------------------
Monthly Monthly Monthly Monthly Monthly Monthly
Capex Envir. TI/LC RE Tax Ins. Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve
----------------------------------------------------------------------------------------------------------------------
1 0.00 0.00 0.00 0.00 0.00 0.00
1.01
1.02
1.03
1.04
1.05
2 0.00 0.00 0.00 1557151.42 0.00 0.00
2.01
2.02
3 5792.73 0.00 23690.49 262931.47 64736.98 10563.25
4 0.00 0.00 0.00 48325.00 11618.00 0.00
5 0.00 0.00 0.00 0.00 0.00 0.00
5.01
5.02
5.03
5.04
5.05
5.06
6 0.00 0.00 0.00 131617.00 0.00 0.00
7 146000.00 0.00 0.00 198349.60 67970.07 0.00
8 0.00 0.00 0.00 148941.17 20135.42 0.00
9 0.00 0.00 0.00 70938.69 0.00 0.00
10 5287.50 0.00 42585.00 169396.36 16346.44 330424.91
11 10902.75 0.00 54613.75 212228.86 8211.32 25000.00
12 3623.41 0.00 49215.83 81859.46 6222.68 0.00
13 9210.67 0.00 32110.08 101975.64 5878.60 0.00
14 34541.67 0.00 0.00 42420.99 30019.11 0.00
14.01
14.02
14.03
14.04
14.05
15 4911.08 0.00 32740.42 34347.63 6578.95 0.00
16 14000.00 0.00 0.00 0.00 0.00 0.00
17 0.00 0.00 0.00 0.00 0.00 0.00
17.01
17.02
17.03
17.04
18 0.00 0.00 0.00 0.00 0.00 0.00
19 0.00 0.00 0.00 0.00 0.00 0.00
20 3790.75 0.00 8333.00 44588.22 6168.75 0.00
21 0.00 0.00 0.00 29669.77 2473.00 0.00
21.01
21.02
22 6667.67 0.00 0.00 49299.42 6751.50 0.00
23 2316.42 0.00 5602.75 77818.45 3326.83 0.00
24 47,911.00 0.00 0.00 8702.87 0.00 0.00
25 0.00 0.00 0.00 26336.48 28729.11 0.00
26 1683.52 0.00 4194.39 33702.59 0.00 0.00
27 50,397.00 0.00 0.00 31,301.65 0.00 0.00
28 0.00 0.00 0.00 39728.39 4731.61 0.00
29 0.00 0.00 0.00 0.00 0.00 0.00
30 2976.58 0.00 31865.48 42784.65 4037.08 0.00
31 11789.75 0.00 0.00 19788.32 0.00 0.00
32 1260.00 0.00 0.00 17890.57 3019.08 0.00
33 24486.23 0.00 0.00 23679.65 0.00 0.00
33.01
33.02
34 1767.25 0.00 6923.66 25341.37 4149.17 0.00
35 1587.00 0.00 15566.00 0.00 0.00 0.00
36 0.00 0.00 0.00 35356.99 3373.40 0.00
37 1244.19 0.00 15483.00 23253.16 1144.16 0.00
38 1424.00 0.00 5909.00 17536.37 0.00 0.00
39 17283.00 0.00 0.00 23426.97 0.00 0.00
40 29100.00 0.00 0.00 44049.47 11893.19 0.00
41 21523.88 0.00 0.00 20602.80 0.00 0.00
41.01
41.02
42 23600.00 0.00 0.00 25019.84 0.00 0.00
43 0.00 0.00 0.00 0.00 0.00 0.00
44 3751.75 0.00 13891.17 29363.00 1826.24 0.00
45 0.00 0.00 0.00 0.00 0.00 0.00
46 23780.00 0.00 0.00 34240.31 7166.67 0.00
47 0.00 0.00 0.00 0.00 0.00 0.00
48 6600.00 0.00 0.00 15856.40 7806.85 0.00
49 1819.67 0.00 9098.17 15878.88 4070.62 0.00
50 0.00 0.00 0.00 0.00 0.00 0.00
51 1038.00 0.00 4607.00 14567.27 0.00 0.00
52 0.00 0.00 0.00 32210.90 0.00 0.00
53 1081.00 0.00 4702.00 15543.77 0.00 0.00
54 0.00 0.00 0.00 0.00 0.00 0.00
55 27413.38 0.00 0.00 32097.10 6532.76 0.00
56 0.00 0.00 0.00 0.00 0.00 0.00
57 0.00 0.00 0.00 26373.93 7938.32 0.00
58 4876.28 0.00 0.00 15250.00 6775.91 0.00
59 1882.00 0.00 0.00 15356.38 3710.92 0.00
59.01
59.02
59.03
59.04
59.05
59.06
59.07
59.08
59.09
59.10
59.11
59.12
59.13
59.14
59.15
59.16
59.17
59.18
59.19
59.20
59.21
59.22
59.23
59.24
59.25
59.26
59.27
59.28
60 899.78 0.00 12083.33 24888.78 3093.50 0.00
60.01
60.02
60.03
60.04
60.05
60.06
61 0.00 0.00 0.00 19336.33 0.00 0.00
61.01
61.02
62 0.00 0.00 0.00 0.00 0.00 0.00
63 1254.17 0.00 0.00 19042.00 1886.75 0.00
64 2523.60 0.00 0.00 14468.00 2127.00 0.00
65 0.00 0.00 0.00 0.00 0.00 0.00
66 2180.00 0.00 14262.00 29598.88 3297.09 0.00
67 690.84 0.00 5,181.09 11312.73 2156.00 0.00
68 1006.42 0.00 0.00 6796.04 1125.00 0.00
69 0.00 0.00 0.00 0.00 0.00 0.00
70 2000.00 0.00 0.00 27609.90 4432.83 0.00
71 1272.50 0.00 6362.50 35699.50 3190.03 0.00
72 2260.00 0.00 8923.00 12586.75 2616.37 0.00
73 0.00 0.00 0.00 0.00 0.00 0.00
74 1107.11 0.00 1510.00 539.44 0.00 0.00
75 12419.00 0.00 0.00 0.00 0.00 0.00
76 2441.00 0.00 1388.00 8876.59 0.00 0.00
77 1,810.75 0.00 6,390.85 8,668.36 1,738.16 10000.00
78 2,134.00 0.00 23615.00 6822.00 17847.30 0.00
79 0.00 0.00 0.00 0.00 0.00 0.00
80 1170.33 0.00 7704.75 15255.48 3286.27 0.00
81 10132.67 0.00 0.00 3589.76 1824.33 0.00
82 538.00 0.00 0.00 19750.00 1309.00 0.00
83 675.95 0.00 3379.75 9000.00 1167.50 0.00
84 0.00 0.00 0.00 0.00 0.00 0.00
85 0.00 0.00 0.00 13444.87 1661.16 0.00
86 11633.67 0.00 0.00 5203.46 2267.29 0.00
87 0.00 0.00 0.00 0.00 0.00 0.00
88 0.00 0.00 0.00 0.00 0.00 0.00
89 5275.00 0.00 0.00 8757.74 1547.83 0.00
90 12678.42 0.00 0.00 10922.94 0.00 0.00
91 0.00 0.00 0.00 0.00 0.00 0.00
92 7500.00 0.00 0.00 26250.00 7900.00 0.00
93 0.00 0.00 0.00 0.00 0.00 0.00
94 199.75 0.00 9166.67 3786.67 275.66 0.00
95 0.00 0.00 0.00 0.00 0.00 0.00
96 5333.00 0.00 0.00 7997.69 4507.27 0.00
97 3200.23 0.00 0.00 8824.15 2900.00 0.00
98 375.00 0.00 0.00 0.00 304.98 0.00
99 0.00 0.00 0.00 0.00 0.00 0.00
100 0.00 0.00 0.00 7747.57 2133.42 0.00
101 756.20 0.00 5184.50 16828.75 1881.99 0.00
102 3262.50 0.00 0.00 10431.79 1777.00 0.00
103 1702.08 0.00 4024.92 12224.33 1469.59 0.00
104 11767.00 0.00 0.00 0.00 3150.95 0.00
105 1346.67 0.00 4166.67 4424.85 3359.17 8333.00
106 0.00 0.00 1803.70 0.00 895.70 0.00
107 320.50 0.00 2136.67 7800.00 1703.43 0.00
108 1400.00 0.00 2500.00 8795.06 3523.50 0.00
109 0.00 0.00 0.00 0.00 0.00 0.00
110 0.00 0.00 0.00 7531.51 3566.73 0.00
111 4333.33 0.00 0.00 21558.53 5549.33 0.00
112 12420.00 0.00 0.00 15296.17 3623.17 0.00
113 283.00 0.00 0.00 11191.43 929.75 0.00
114 0.00 0.00 0.00 7100.45 1271.08 0.00
115 8401.33 0.00 0.00 6438.52 2564.90 0.00
116 0.00 0.00 0.00 0.00 0.00 0.00
117 654.25 0.00 2174.25 5677.91 1247.05 0.00
118 0.00 0.00 0.00 0.00 0.00 0.00
119 0.00 0.00 0.00 0.00 0.00 0.00
120 2319.50 0.00 0.00 5258.50 3167.75 0.00
121 3972.33 0.00 1137.42 13429.04 2317.21 0.00
122 1087.00 0.00 3620.50 9380.61 1432.43 0.00
123 437.50 0.00 0.00 8385.50 1022.23 0.00
124 643.75 0.00 4166.67 3120.00 2373.80 0.00
125 0.00 0.00 0.00 6865.82 743.25 0.00
126 2084.00 0.00 0.00 8280.00 3901.25 0.00
127 0.00 0.00 0.00 0.00 0.00 0.00
128 5231.25 0.00 0.00 6325.56 2730.08 0.00
129 5000.00 0.00 0.00 5677.33 1871.42 0.00
130 348.00 0.00 3386.00 287.40 590.92 4583.33
131 668.51 0.00 1782.70 1621.50 901.33 0.00
132 0.00 0.00 0.00 0.00 0.00 0.00
133 622.63 0.00 3534.08 15208.96 1707.42 0.00
134 494.83 0.00 4191.46 17552.75 781.33 0.00
135 5366.72 0.00 0.00 5315.10 2524.83 0.00
136 1385.75 0.00 8548.83 8260.38 1733.92 0.00
137 434.75 0.00 0.00 4419.95 560.04 0.00
138 1004.58 0.00 2948.50 12108.42 946.57 0.00
139 843.32 0.00 0.00 7752.00 984.18 0.00
140 2158.13 0.00 0.00 14059.14 2301.72 0.00
141 0.00 0.00 1666.00 0.00 0.00 0.00
142 0.00 0.00 0.00 0.00 0.00 0.00
143 0.00 0.00 0.00 0.00 0.00 0.00
144 0.00 0.00 0.00 6020.48 751.50 0.00
145 10029.17 0.00 0.00 15562.00 0.00 0.00
146 628.00 0.00 4336.58 0.00 473.89 0.00
147 666.71 0.00 0.00 4259.26 763.39 0.00
148 332.25 0.00 2215.08 7574.08 591.33 0.00
149 573.42 0.00 1863.60 5305.08 0.00 0.00
150 926.04 0.00 0.00 5809.88 931.35 0.00
151 187.50 0.00 0.00 0.00 0.00 0.00
152 3132.00 0.00 0.00 2304.31 2545.92 0.00
153 840.75 0.00 4509.33 3971.75 1049.50 0.00
154 1960.83 0.00 0.00 1760.37 1938.00 0.00
154.01
154.02
154.03
154.04
155 1350.41 0.00 4096.05 8440.93 2617.15 0.00
156 5102.10 0.00 0.00 5291.36 3237.00 0.00
157 811.12 0.00 2,271.13 8426.17 1761.08 0.00
158 4041.67 0.00 0.00 7213.42 3092.84 0.00
159 0.00 0.00 0.00 0.00 0.00 0.00
160 354.00 0.00 1654.92 3427.29 778.09 0.00
161 837.92 0.00 0.00 6425.30 1571.87 0.00
162 1000.00 0.00 1000.00 956.33 2132.00 0.00
163 0.00 0.00 0.00 8461.57 868.50 0.00
164 552.74 0.00 2916.67 9350.86 1570.76 0.00
165 0.00 0.00 0.00 0.00 0.00 0.00
166 4838.08 0.00 0.00 3106.48 1834.13 0.00
167 1150.83 0.00 3465.34 5674.13 1280.01 0.00
168 2645.83 0.00 0.00 5149.82 3091.66 0.00
169 302.73 0.00 0.00 6804.33 546.92 0.00
170 596.70 0.00 2083.33 4236.81 639.50 0.00
171 873.73 0.00 3990.42 5495.17 746.50 0.00
172 117.02 0.00 1170.00 3117.91 402.66 0.00
173 3000.00 0.00 0.00 5264.92 2081.03 0.00
174 587.75 0.00 2929.42 7842.24 545.65 0.00
175 162.50 0.00 541.67 2231.01 0.00 0.00
176 7251.75 0.00 0.00 9563.24 0.00 0.00
177 540.50 0.00 0.00 736.61 1096.93 0.00
178 185.08 0.00 1665.75 1740.39 425.58 0.00
179 468.42 0.00 0.00 2755.52 656.29 0.00
180 2583.33 0.00 0.00 4505.51 3253.50 0.00
181 1969.00 0.00 0.00 9639.19 2386.67 0.00
181.01
181.02
182 0.00 0.00 0.00 0.00 0.00 0.00
183 5045.50 0.00 0.00 4172.11 1230.40 0.00
184 1766.25 0.00 2257.25 1842.15 3744.42 0.00
185 328.67 0.00 2716.71 4310.06 679.07 0.00
186 0.00 0.00 0.00 1845.72 587.50 0.00
187 0.00 0.00 0.00 6930.41 1474.25 0.00
188 0.00 0.00 0.00 5352.28 0.00 0.00
189 546.00 0.00 1667.00 6151.08 1208.33 0.00
190 438.50 0.00 3304.00 2517.49 2266.41 0.00
191 633.33 0.00 0.00 4006.92 418.42 0.00
192 2541.66 0.00 0.00 5280.11 2407.50 0.00
193 847.17 0.00 0.00 5822.70 1054.58 0.00
194 0.00 0.00 0.00 2159.92 768.91 0.00
195 1235.63 0.00 0.00 2804.00 0.00 0.00
196 0.00 0.00 0.00 18617.67 753.33 0.00
197 0.00 0.00 0.00 0.00 0.00 0.00
198 0.00 0.00 0.00 0.00 0.00 0.00
199 0.00 0.00 0.00 0.00 0.00 0.00
200 0.00 0.00 0.00 4510.70 485.07 0.00
201 2083.00 0.00 0.00 2667.25 3029.97 0.00
202 0.00 0.00 0.00 0.00 0.00 0.00
203 438.00 0.00 1917.00 2323.00 584.25 0.00
204 0.00 0.00 0.00 4797.43 0.00 0.00
205 995.83 0.00 0.00 2126.20 1924.95 24129.98
206 249.70 0.00 0.00 4319.47 522.25 0.00
207 267.33 0.00 1175.83 4291.51 864.50 0.00
208 58.63 0.00 600.41 4377.58 1526.95 0.00
209 112.46 0.00 677.35 808.24 533.78 0.00
210 383.75 0.00 2276.92 848.06 554.32 0.00
211 3486.66 0.00 0.00 5624.11 3907.54 0.00
212 0.00 0.00 0.00 0.00 0.00 0.00
213 411.25 0.00 2224.75 0.00 374.57 0.00
214 2200.00 0.00 0.00 2521.09 963.19 0.00
215 167.00 0.00 1335.42 827.11 217.92 0.00
216 218.67 0.00 1112.91 1088.44 475.70 0.00
217 1708.00 0.00 0.00 2387.70 1238.71 0.00
218 0.00 0.00 0.00 4924.75 372.13 0.00
219 136.00 0.00 1292.21 1164.27 772.48 0.00
220 4350.08 0.00 0.00 2688.25 1439.83 0.00
221 494.79 0.00 0.00 1848.20 431.97 0.00
222 175.67 0.00 1079.33 3603.55 736.67 0.00
223 325.00 0.00 0.00 1746.03 535.25 0.00
224 1737.85 0.00 0.00 2405.56 1758.73 0.00
225 1331.17 0.00 0.00 2995.20 1996.45 0.00
226 920.08 0.00 0.00 2945.19 782.34 0.00
227 0.00 0.00 0.00 0.00 0.00 0.00
228 733.17 0.00 458.33 1927.00 901.50 0.00
229 149.00 0.00 713.00 2564.07 436.90 0.00
230 0.00 0.00 0.00 3600.23 0.00 0.00
231 0.00 0.00 0.00 0.00 0.00 0.00
232 400.46 0.00 0.00 1647.37 424.24 0.00
233 2480.69 0.00 0.00 3441.72 3569.37 0.00
233.01
233.02
234 201.36 0.00 1019.50 1212.03 695.13 0.00
235 0.00 0.00 0.00 504.84 859.58 0.00
236 678.33 0.00 0.00 3084.31 611.52 0.00
237 583.34 0.00 0.00 758.33 830.12 0.00
238 202.09 0.00 1415.42 1629.95 309.57 0.00
239 221.00 0.00 1437.00 1427.36 986.75 0.00
240 118.75 0.00 0.00 1650.91 8522.80 0.00
241 998.33 0.00 2603.58 5670.68 757.55 0.00
242 153.00 0.00 763.00 862.62 210.42 0.00
243 0.00 0.00 0.00 0.00 0.00 0.00
244 1791.67 0.00 0.00 3647.42 2378.00 0.00
245 4785.50 0.00 0.00 8210.77 5702.26 0.00
245.01
245.02
246 274.42 0.00 0.00 1961.81 315.95 0.00
247 0.00 0.00 0.00 0.00 0.00 0.00
248 0.00 0.00 0.00 1176.63 339.00 0.00
248.01
248.02
249 408.67 0.00 1142.50 2895.35 341.64 0.00
250 2041.67 0.00 0.00 3644.75 1733.31 0.00
251 855.84 0.00 0.00 231.55 1061.75 0.00
252 679.41 0.00 921.83 2242.44 423.96 0.00
253 73.75 0.00 491.67 639.14 813.34 0.00
254 360.83 0.00 0.00 1242.01 329.55 0.00
255 87.16 0.00 408.58 1407.81 556.66 0.00
256 417.33 0.00 0.00 1878.80 286.69 0.00
257 175.00 0.00 910.00 1485.21 636.57 0.00
258 1000.00 0.00 0.00 2060.34 1255.18 0.00
259 877.33 0.00 0.00 1937.45 956.19 0.00
260 450.00 0.00 0.00 677.03 493.65 0.00
261 61.88 0.00 576.25 1635.52 722.89 0.00
262 0.00 0.00 0.00 0.00 0.00 0.00
263 0.00 0.00 0.00 0.00 0.00 0.00
264 163.33 0.00 0.00 945.86 135.92 0.00
265 0.00 0.00 0.00 0.00 0.00 0.00
266 171.00 0.00 0.00 948.12 292.32 0.00
267 173.61 0.00 866.00 2417.31 249.69 0.00
268 0.00 0.00 0.00 2339.80 356.20 0.00
269 0.00 0.00 0.00 2073.83 490.73 0.00
Final
Grace Lockbox Property Defeasance Loan Servicing Maturity
Loan # Period In-place Type Permitted Group Group Date
--------------------------------------------------------------------------------------------------------------------------------
1 7 Yes Retail Yes 1 B
1.01 7 Yes Retail Yes 1 B
1.02 7 Yes Retail Yes 1 B
1.03 7 Yes Retail Yes 1 B
1.04 7 Yes Retail Yes 1 B
1.05 7 Yes Retail Yes 1 B
2 10 Yes Office Yes 1 B
2.01 10 Yes Office Yes 1 B
2.02 10 Yes Office Yes 1 B
3 5 Yes Retail Yes 1 A
4 0 Yes Office Yes 1 B
5 0 Yes Hotel Yes 1 A
5.01 0 Yes Hotel Yes 1 A
5.02 0 Yes Hotel Yes 1 A
5.03 0 Yes Hotel Yes 1 A
5.04 0 Yes Hotel Yes 1 A
5.05 0 Yes Hotel Yes 1 A
5.06 0 Yes Hotel Yes 1 A
6 5 Yes Retail Yes 1 B
7 5 Yes Hotel Yes 1 A
8 0 Yes Office Yes 1 B
9 0 Yes Retail Yes 1 A
10 5 Yes Office Yes 1 A
11 5 Yes Office Yes 1 A
12 5 No Office Yes 1 A
13 5 Yes Office Yes 1 A
14 5 No Multifamily Yes 2 A
14.01 5 No Multifamily Yes 2 A
14.02 5 No Multifamily Yes 2 A
14.03 5 No Multifamily Yes 2 A
14.04 5 No Multifamily Yes 2 A
14.05 5 No Multifamily Yes 2 A
15 5 Yes Office Yes 1 A
16 5 No Multifamily Yes 2 A
17 5 Yes Industrial Yes 1 A
17.01 5 Yes Industrial Yes 1 A
17.02 5 Yes Industrial Yes 1 A
17.03 5 Yes Industrial Yes 1 A
17.04 5 Yes Industrial Yes 1 A
18 0 Yes Multifamily Yes 1 B
19 5 Yes Hotel Yes 1 A
20 5 Yes Retail Yes 1 B
21 5 No Office Yes 1 B
21.01 5 No Office Yes 1 B
21.02 5 No Office Yes 1 B
22 0 Yes Multifamily Yes 1 B
23 5 No Retail Yes 1 A
24 0 No Hotel Yes 1 B
25 0 No Hotel Yes 1 A
26 5 No Retail Yes 1 A
27 0 No Hotel Yes 1 B
28 5 No Office Yes 1 A
29 5 No Retail No 1 A
30 5 Yes Office Yes 1 A
31 10 No Multifamily Yes 1 B
32 7 No Office Yes 1 B
33 5 No Hotel Yes 1 A
33.01 5 No Hotel Yes 1 A
33.02 5 No Hotel Yes 1 A
34 5 No Retail Yes 1 A
35 5 Yes Office Yes 1 A
36 5 No Retail Yes 1 A
37 7 No Office Yes 1 B
38 5 No Retail Yes 1 A
39 5 No Hotel Yes 1 A
40 5 Yes Hotel Yes 1 A
41 5 No Hotel Yes 1 A
41.01 5 No Hotel Yes 1 A
41.02 5 No Hotel Yes 1 A
42 5 No Hotel Yes 1 A
43 7 No Industrial Yes 1 B
44 5 No Office Yes 1 A
45 5 No Multifamily Yes 2 A
46 0 Yes Hotel Yes 1 A
47 7 No Industrial Yes 1 B
48 7 No Multifamily Yes 2 A
49 0 Yes Office Yes 1 A
50 5 No Retail No 1 A 03/01/36
51 5 No Retail Yes 1 A
52 5 Yes Industrial Yes 1 A
53 5 No Retail Yes 1 A
54 5 No Manufactured Housing Yes 1 A
55 5 No Hotel Yes 1 A
56 7 No Industrial Yes 1 B
57 5 No Hotel Yes 1 A
58 7 No Multifamily Yes 2 B
59 0 No Retail Yes 1 A 06/11/36
59.01 0 No Retail Yes 1 A
59.02 0 No Retail Yes 1 A
59.03 0 No Retail Yes 1 A
59.04 0 No Retail Yes 1 A
59.05 0 No Retail Yes 1 A
59.06 0 No Retail Yes 1 A
59.07 0 No Retail Yes 1 A
59.08 0 No Retail Yes 1 A
59.09 0 No Retail Yes 1 A
59.10 0 No Retail Yes 1 A
59.11 0 No Retail Yes 1 A
59.12 0 No Retail Yes 1 A
59.13 0 No Retail Yes 1 A
59.14 0 No Retail Yes 1 A
59.15 0 No Retail Yes 1 A
59.16 0 No Retail Yes 1 A
59.17 0 No Retail Yes 1 A
59.18 0 No Retail Yes 1 A
59.19 0 No Retail Yes 1 A
59.20 0 No Retail Yes 1 A
59.21 0 No Retail Yes 1 A
59.22 0 No Retail Yes 1 A
59.23 0 No Retail Yes 1 A
59.24 0 No Retail Yes 1 A
59.25 0 No Retail Yes 1 A
59.26 0 No Retail Yes 1 A
59.27 0 No Retail Yes 1 A
59.28 0 No Retail Yes 1 A
60 7 No Office Yes 1 B
60.01 7 No Office Yes 1 B
60.02 7 No Office Yes 1 B
60.03 7 No Office Yes 1 B
60.04 7 No Office Yes 1 B
60.05 7 No Office Yes 1 B
60.06 7 No Office Yes 1 B
61 0 No Retail Yes 1 A
61.01 0 No Retail Yes 1 A
61.02 0 No Retail Yes 1 A
62 0 No Retail No 1 A
63 7 No Multifamily Yes 2 B
64 0 Yes Office No 1 B
65 0 No Retail No 1 A 06/11/31
66 5 No Office Yes 1 A
67 0 Yes Office Yes 1 A
68 0 No Retail Yes 1 A
69 5 No Retail No 1 A 04/01/36
70 7 No Office Yes 1 B
71 5 No Office Yes 1 A
72 5 No Retail Yes 1 A
73 5 No Industrial Yes 1 A
74 5 Yes Multifamily Yes 1 A
75 5 No Hotel Yes 1 A
76 5 No Retail Yes 1 A
77 0 No Retail Yes 1 B
78 0 Yes Office Yes 1 B
79 0 No Retail No 1 A 06/11/31
80 5 Yes Retail Yes 1 A
81 5 No Hotel Yes 1 A
82 5 No Retail No 1 B
83 0 No Office Yes 1 B
84 5 Yes Office Yes 1 B
85 5 Yes Office Yes 1 A
86 5 No Hotel Yes 1 A
87 7 No Industrial Yes 1 B
88 7 No Retail Yes 1 B
89 7 No Multifamily Yes 2 B
90 5 No Hotel Yes 1 A
91 0 No Retail No 1 A
92 0 No Multifamily Yes 2 B
93 7 No Industrial Yes 1 B
94 7 No Retail Yes 1 B
95 5 No Manufactured Housing Yes 2 A
96 5 No Multifamily Yes 2 A
97 7 No Multifamily No 2 B
98 5 Yes Retail No 1 A
99 0 No Retail No 1 A 06/11/31
100 5 Yes Industrial Yes 1 A
101 5 No Retail Yes 1 A
102 0 No Multifamily No 2 A
103 5 No Retail Yes 1 A
104 5 No Hotel Yes 1 A
105 7 No Retail Yes 1 B
106 5 No Office Yes 1 A
107 5 No Retail Yes 1 A
108 10 Yes Retail Yes 1 B
109 0 No Retail No 1 A 06/11/31
110 10 No Multifamily Yes 1 B
111 7 No Multifamily Yes 2 B
112 0 Yes Hotel Yes 1 A
113 10 No Retail Yes 1 B
114 7 No Office Yes 1 B
115 5 No Hotel Yes 1 A
116 0 No Office No 1 A 05/01/36
117 5 No Retail Yes 1 A
118 7 No Retail Yes 1 B
119 5 No Manufactured Housing Yes 1 A
120 7 No Multifamily Yes 2 A
121 5 No Retail No 1 A
122 5 No Retail No 1 A
123 5 No Retail Yes 1 A
124 5 No Office Yes 1 A
125 5 No Office Yes 1 A
126 0 No Multifamily No 2 B
127 5 No Manufactured Housing Yes 2 A
128 10 No Multifamily Yes 2 B
129 7 No Multifamily Yes 2 B
130 5 Yes Office Yes 1 A
131 10 Yes Retail Yes 1 B
132 0 No Office No 1 A
133 5 No Retail Yes 1 A
134 7 No Office Yes 1 B
135 7 No Hotel Yes 1 B
136 5 No Office Yes 1 A
137 5 No Manufactured Housing No 2 A
138 5 No Retail Yes 1 A
139 0 No Retail Yes 1 B
140 5 Yes Office Yes 1 A
141 5 Yes Retail Yes 1 B
142 5 Yes Retail Yes 1 B
143 7 No Industrial Yes 1 B
144 7 No Office Yes 1 B
145 5 No Hotel Yes 1 A
146 5 No Office Yes 1 A
147 15 No Self-Storage No 1 A
148 0 No Office No 1 A
149 0 No Office Yes 1 B
150 5 No Self-Storage Yes 1 A
151 5 No Retail Yes 1 A
152 5 No Multifamily Yes 2 A
153 5 No Industrial Yes 1 A
154 5 No Self-Storage Yes 1 A
154.01 5 No Self-Storage Yes 1 A
154.02 5 No Self-Storage Yes 1 A
154.03 5 No Self-Storage Yes 1 A
154.04 5 No Self-Storage Yes 1 A
155 5 No Retail No 1 A
156 5 No Hotel Yes 1 A
157 0 Yes Industrial Yes 1 A
158 0 No Multifamily Yes 2 A
159 5 No Manufactured Housing Yes 2 A
160 5 No Office Yes 1 A
161 5 Yes Retail Yes 1 A
162 5 No Multifamily Yes 1 A
163 0 No Manufactured Housing Yes 2 A
164 7 Yes Industrial Yes 1 B
165 5 No Manufactured Housing Yes 1 A
166 5 No Hotel Yes 1 A
167 7 No Industrial Yes 1 B
168 7 No Multifamily Yes 2 B
169 7 No Retail Yes 1 B
170 7 No Industrial Yes 1 B
171 7 No Office Yes 1 B
172 7 No Retail Yes 1 B
173 5 No Multifamily Yes 2 A
174 5 No Office Yes 1 A
175 0 No Retail Yes 1 A
176 5 No Hotel Yes 1 A
177 5 No Retail Yes 1 A
178 0 No Retail Yes 1 A
179 5 No Self-Storage No 1 A
180 0 Yes Multifamily Yes 2 A
181 0 No Self-Storage Yes 1 A
181.01 0 No Self-Storage Yes 1 A
181.02 0 No Self-Storage Yes 1 A
182 7 No Retail Yes 1 B
183 0 Yes Hotel Yes 1 A
184 5 No Self-Storage Yes 1 A
185 5 Yes Office Yes 1 A
186 0 Yes Manufactured Housing Yes 2 A
187 0 No Retail Yes 1 A
188 5 No Manufactured Housing Yes 2 A
189 7 No Retail Yes 1 A
190 7 No Office Yes 1 B
191 0 No Manufactured Housing Yes 2 A
192 5 No Multifamily Yes 2 A
193 7 No Self-Storage No 1 A
194 0 No Manufactured Housing Yes 1 A
195 10 No Self-Storage Yes 1 B
196 0 Yes Office Yes 1 A
197 5 No Retail Yes 1 A
198 0 No Retail No 1 A
199 0 No Retail No 1 A
200 5 No Multifamily Yes 2 A
201 5 No Multifamily No 1 A
202 0 No Retail No 1 A
203 7 No Retail Yes 1 B
204 5 No Manufactured Housing Yes 1 A
205 5 No Manufactured Housing Yes 1 A
206 5 No Retail Yes 1 A
207 5 No Retail Yes 1 A
208 7 No Self-Storage Yes 1 B
209 5 No Retail Yes 1 A
210 5 No Retail Yes 1 A
211 5 No Multifamily Yes 2 A
212 7 No Office Yes 1 B
213 5 No Office Yes 1 A
214 7 No Multifamily Yes 2 B
215 0 No Retail Yes 1 A
216 5 No Retail Yes 1 A
217 5 No Multifamily Yes 2 A
218 5 No Retail Yes 1 A
219 5 No Retail No 1 A
220 0 Yes Hotel Yes 1 A
221 15 No Self-Storage No 1 A
222 5 No Retail Yes 1 A
223 5 No Manufactured Housing No 1 A
224 5 No Multifamily Yes 2 A
225 5 No Self-Storage Yes 1 A
226 5 No Self-Storage Yes 1 A
227 5 No Manufactured Housing Yes 2 A
228 0 Yes Self-Storage Yes 1 A
229 5 No Retail Yes 1 A
230 5 No Manufactured Housing Yes 2 A
231 5 No Manufactured Housing Yes 2 A
232 15 No Self-Storage No 1 A
233 5 No Multifamily Yes 2 A
233.01 5 No Multifamily Yes 2 A
233.02 5 No Multifamily Yes 2 A
234 5 No Retail Yes 1 A
235 0 No Manufactured Housing Yes 2 A
236 5 No Self-Storage Yes 1 A
237 0 No Manufactured Housing Yes 2 A
238 5 No Office Yes 1 A
239 0 No Retail Yes 1 A
240 5 No Retail Yes 1 A
241 5 No Industrial Yes 1 A
242 0 No Retail Yes 1 A
243 0 Yes Retail Yes 1 B
244 0 No Multifamily Yes 1 B
245 5 No Multifamily Yes 2 A
245.01 5 No Multifamily Yes 2 A
245.02 5 No Multifamily Yes 2 A
246 15 No Self-Storage No 1 A
247 0 No Retail Yes 1 A
248 0 No Manufactured Housing Yes 2 A
248.01 0 No Manufactured Housing Yes 2 A
248.02 0 No Manufactured Housing Yes 2 A
249 0 No Office Yes 1 A
250 0 No Multifamily Yes 2 A
251 5 No Self-Storage Yes 1 A
252 5 No Retail Yes 1 A
253 0 Yes Retail Yes 1 A
254 15 No Self-Storage No 1 A
255 5 No Retail Yes 1 A
256 5 No Self-Storage Yes 1 A
257 5 No Retail Yes 1 A
258 5 No Multifamily Yes 2 A
259 5 No Self-Storage Yes 1 A
260 5 No Manufactured Housing Yes 1 A
261 5 No Retail No 1 A
262 5 No Retail Yes 1 A
263 5 No Retail Yes 1 A
264 15 No Self-Storage No 1 A
265 5 Yes Industrial Yes 1 A
266 5 No Manufactured Housing No 2 A
267 5 No Retail Yes 1 A
268 5 No Retail Yes 1 A
269 0 No Manufactured Housing Yes 1 A
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7
--------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Wachovia Bank, National
Association, as Master Servicers, LNR Partners, Inc., as Special Servicer, Wells
Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association, as Paying
Agent, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates,
Series 2006-LDP7 (the "Certificates") in connection with the transfer by
_________________ (the "Seller") to the undersigned (the "Purchaser") of
$_______________ aggregate Certificate Balance of Class ___ Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[ ] The Purchaser is not purchasing a Class S, Class R or Class LR
Certificate and the Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for which it is
acting are each able to bear the economic risk of the Purchaser's or
such account's investment. The Purchaser is acquiring the
Certificates purchased by it for its own account or for one or more
accounts (each of which is an "institutional accredited investor")
as to each of which the Purchaser exercises sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust
Fund for any costs incurred by it in connection with this transfer.
[ ] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Class S Certificate or a Residual Certificate) to
institutional "accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act or (iii)
(other than with respect to a Class S Certificate or a Residual Certificate)
pursuant to any other exemption from the registration requirements of the
Securities Act, subject in the case of clauses (ii) and (iii) above to (w) the
receipt by the Certificate Registrar of a letter substantially in the form
hereof, (x) the receipt by the Certificate Registrar of an opinion of counsel
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act, (y) the receipt by the
Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act and other applicable laws and (z) a written undertaking to
reimburse the Trust for any costs incurred by it in connection with the proposed
transfer. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[ ] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[ ] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
[ ] (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
[ ] (b) by mailing a check or draft to the following address:
______________________________________________________
______________________________________________________
______________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
_________________________________________
[The Purchaser]
By:______________________________________
Name:
Title:
Dated:
-------------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of ________] [United States], on behalf of
which [he] [she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates,
Series 2006-LDP7, Class [R] [LR] Certificate (the "Class [R] [LR] Certificate")
is not a Disqualified Organization (as defined below) or an agent thereof
(including nominee, middleman or other similar person) (an "Agent"), or an ERISA
Prohibited Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the applicable Master Servicer
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause any of the [Upper-Tier REMIC],
[the Lower-Tier REMIC] to fail to qualify as a REMIC, or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are owned, directly or
indirectly, through any partnership, trust or other pass-through entity, by any
person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax
liabilities with respect to the Class [R] [LR] Certificate in excess of any cash
flow generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization, or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling
and Servicing Agreement, dated June 1, 2006, by and among J.P. Morgan Chase
Commercial Mortgage Securities Corp., as Depositor, Capmark Finance Inc. and
Wachovia Bank, National Association, as Master Servicers, LNR Partners, Inc., as
Special Servicer, Wells Fargo Bank, N.A., as Trustee and LaSalle Bank National
Association, as Paying Agent (the "Pooling and Servicing Agreement"), as may be
required to further effectuate the restrictions on transfer of the Class [R]
[LR] Certificate to such a Disqualified Organization, or an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated
with respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee
agrees to act as "tax matters person" and to perform the functions of "tax
matters person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and, in such event,
agrees to the irrevocable designation of the Trustee as the Transferee's agent
in performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by
and to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class [R]
[LR] Certificate to be attributable to, a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other U.S. person.
11. Check one of the following:
[ ] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R] [LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
[ ] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that [he] [she] executed the same as [his] [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7
--------------------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
_________________________________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services - J.P. Morgan Chase
Commercial Mortgage Securities Trust 2006-LDP7, Commercial
Mortgage Pass-Through Certificates, Series 2006-LDP7
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7,
REQUEST FOR RELEASE
------------------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated June 1, 2006 (the "Pooling and Servicing Agreement"), by and among J.P.
Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Capmark Finance
Inc. and Wachovia Bank, National Association, as Master Servicers, LNR Partners,
Inc., as Special Servicer, you, as Trustee, and LaSalle Bank National
Association, as Paying Agent, the undersigned hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [applicable Master
Servicer] [Special Servicer] hereby certifies that all
amounts received in connection with the Mortgage Loan
have been or will be credited to the applicable
Certificate Account pursuant to the Pooling and
Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[APPLICABLE MASTER SERVICER] [SPECIAL
SERVICER]
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7
------------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of J.P. Morgan Chase Commercial Mortgage Securities
Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7, Class __ (the "Certificate") issued pursuant to that certain Pooling
and Servicing Agreement, dated June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as depositor ("Depositor"), Capmark Finance Inc. and Wachovia Bank,
National Association, as master servicers ("Master Servicers"), LNR Partners,
Inc., as special servicer ("Special Servicer"), Wells Fargo Bank, N.A., as
trustee ("Trustee"), and LaSalle Bank National Association, as Paying Agent
("Paying Agent"). Capitalized terms used and not otherwise defined herein have
the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than, except in the case of the Class S
Certificates, an insurance company using the assets of its "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60) under circumstances whereby the
purchase and holding of Offered Private Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of PTCE 95-60.
2. Except in the case of the Class S Certificates, which may not be
transferred to a Person that cannot make the representation in paragraph 1
above, the Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or (b) above, such Purchaser is required to provide to the Certificate
Registrar an Opinion of Counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Certificate Registrar, the Master Servicers, the Special Servicer, the
Dealers or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be at the expense of the Depositor, the Master
Servicers, the Special Servicer, the Dealers, the Certificate Registrar or the
Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_________________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex C to the Prospectus Supplement dated June 23, 2006]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto Wells Fargo Bank, N.A., as Trustee for the registered
holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7" (the
"Assignee"), having an office at 9062 Old Annapolis Road, Columbia, Maryland
21045-1951, Attn: Corporate Trust Services - J.P. Morgan Commercial Mortgage
Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates,
Series 2006-LDP7, its successors and assigns, all right, title and interest of
the Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By:______________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7 Class [__]
--------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Wachovia Bank, National
Association, as Master Servicers, LNR Partners, Inc., as Special Servicer, Wells
Fargo Bank, N.A., as Trustee and LaSalle Bank National Association, as Paying
Agent, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates,
Series 2006-LDP7, Class __ (the "Certificates") in connection with the transfer
by the undersigned (the "Transferor") to _________________ (the "Transferee") of
$__________________ [Certificate Balance] [Notional Amount]of Certificates, in
fully registered form (each, a "Definitive Certificate"), or a beneficial
interest of such aggregate [Certificate Balance] [Notional Amount] in the
Regulation S Book-Entry Certificate (the "Book-Entry Certificate") maintained by
The Depository Trust Company or its successor as Depositary under the Pooling
and Servicing Agreement (such transferred interest, in either form, being the
"Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7 Class [__]
-------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Wachovia Bank, National
Association, as Master Servicers, LNR Partners, Inc., as Special Servicer, Wells
Fargo Bank, N.A., as Trustee and LaSalle Bank National Association, as Paying
Agent on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates,
Series 2006-LDP7, Class __ (the "Certificates") in connection with the transfer
by the undersigned (the "Transferor") to _________________ (the "Transferee") of
$__________________ [Certificate Balance][Notional Amount] of Certificates, in
fully registered form (each, a "Definitive Certificate"), or a beneficial
interest of such aggregate [Certificate Balance][Notional Amount] in the
Regulation S Book-Entry Certificate (the "Book-Entry Certificate") maintained by
The Depository Trust Company or its successor as Depositary under the Pooling
and Servicing Agreement (such transferred interest, in either form, being the
"Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services - JPMorgan 2006-LDP7
Capmark Finance Inc.
200 Witmer Road
Horsham, Pennsylvania 19044
Attention: Portfolio Management Group Re: J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7
Wachovia Bank, National Association
8739 Research Drive - URP4, NC 1075
Charlotte, North Carolina 28262-1075
Attention: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7
LNR Partners, Inc.
1601 Washington Avenue, Suite 700
Miami Beach, Florida 33139
Attention: Randy Wolpert
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7
---------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement, dated June 1, 2006 (the "Pooling and Servicing Agreement"), by and
among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Capmark Finance Inc. and Wachovia Bank, National Association, as
Master Servicers ("Master Servicers"), LNR Partners, Inc., as special servicer
("Special Servicer"), Wells Fargo Bank, N.A., as Trustee ("Trustee") and LaSalle
Bank National Association, as paying agent ("Paying Agent"). Capitalized terms
used herein and not otherwise defined shall have the meaning set forth in the
Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the applicable Master Servicer's
notice confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
applicable Master Servicer in exchange for the release of the Mortgage Loan, the
related Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the applicable Master Servicer with such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably necessary to
vest in it or its designee the ownership of Mortgage Loan [__], together with
such other documents or instruments as the applicable Master Servicer shall
reasonably require to consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the applicable Master Servicer's notice confirming that the
exercise of its Purchase Option is effective, the undersigned Option Holder, or
its designee, shall be obligated to close its purchase of Mortgage Loan ___ in
accordance with the terms and conditions of this letter and of the Pooling and
Servicing Agreement.
Very truly yours,
[Option Holder]
By:____________________________________
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[_______________________]
By:____________________________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7 Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 1, 2006 (the "Pooling and Servicing Agreement"), by and among J.P.
Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Capmark Finance
Inc. and Wachovia Bank, National Association, as Master Servicers, LNR Partners,
Inc., as Special Servicer, Wells Fargo Bank, N.A., as Trustee and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of J.P. Morgan
Chase Commercial Mortgage Securities Trust 2006-LDP7, Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP7. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------------
* Select appropriate depository.
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
[RESERVED]
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7, Class [__]
--------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 1, 2006 (the "Pooling and Servicing Agreement"), by and among J.P.
Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Capmark Finance
Inc. and Wachovia Bank, National Association, as Master Servicers, LNR Partners,
Inc., as Special Servicer, Wells Fargo Bank, N.A., as Trustee and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of J.P. Morgan
Chase Commercial Mortgage Securities Trust 2006-LDP7, Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP7. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE TO RULE 144A GLOBAL
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7, Class[__]
------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 1, 2006 (the "Pooling and Servicing Agreement"), by and among J.P.
Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Capmark Finance
Inc. and Wachovia Bank, National Association, as Master Servicers, LNR Partners,
Inc., as Special Servicer, Wells Fargo Bank, N.A., as Trustee and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of J.P. Morgan
Chase Commercial Mortgage Securities Trust 2006-LDP7, Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP7. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master
Servicers, the Special Servicer and Initial Purchaser of the offering of the
Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------------
* Select appropriate depository.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7, Class [__]
--------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Wachovia Bank, National
Association, as Master Servicers, LNR Partners, Inc., as Special Servicer, Wells
Fargo Bank, N.A., as Trustee and LaSalle Bank National Association, as Paying
Agent, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates,
Series 2006-LDP7 in connection with the transfer by _______________ of a
beneficial interest of $___________ [Certificate Balance] [Notional Amount] in a
Book-Entry Certificate during the Restricted Period to the undersigned (the
"Transferee"). The Transferee desires to beneficially own such transferred
interest in the form of the Regulation S Book-Entry Certificate. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the applicable Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT Q
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7
Commercial Mortgage Pass-Through Certificates
Series 2006-LDP7 (the "Trust")
I, [_____________], the President and Chief Executive Officer of
J.P. Morgan Chase Commercial Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
10-D required to be filed in respect of period covered by this annual
report on Form 10-K, of the Trust (the "Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s) required in
this report under Item 1123 of Regulation AB, and except as disclosed in
the Exchange Act Periodic Reports, the master servicers and the special
servicer have fulfilled their obligations under the pooling and servicing
agreement; and
5. All of the reports on assessment of compliance with servicing criteria and
their related attestation reports on assessment of compliance with
servicing criteria required to be included in this report in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18
have been included as an exhibit to this report, except as otherwise
disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Capmark Finance Inc.,
Wachovia Bank, National Association, LNR Partners, Inc., Wells Fargo Bank, N.A.
and LaSalle Bank National Association.
Date:_________________________
By:______________________________________
President and Chief Executive Officer
J.P. Morgan Chase Commercial Mortgage
Securities Corp.
EXHIBIT R-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY PAYING AGENT
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7
Commercial Mortgage Pass-Through Certificates
Series 2006-LDP7 (the "Trust")
I, [identify the certifying individual], a [title] of LaSalle Bank
National Association, certify to J.P. Morgan Chase Commercial Mortgage
Securities Corp. and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 20__
(the "Annual Report"), and all reports on Form 10-D required to be filed
in respect of periods covered by that annual report on Form 10-K, of the
Trust (collectively with the Annual Report, the "Exchange Act Periodic
Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by the Annual Report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided to the paying agent by the master
servicers and the special servicer under the pooling and servicing
agreement for inclusion in the Exchange Act Periodic Reports is included
in such reports;
4. I am responsible for reviewing the activities performed by the Paying
Agent and based on my knowledge and the compliance reviews conducted in
preparing the Paying Agent compliance statements required for inclusion on
Form 10-K pursuant to Item 1123 of Regulation AB, and except as disclosed
on any Form 10-D or 10-K, the Paying Agent has fulfilled its obligations
in all material respects under the pooling and servicing agreement; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and
Section 11.11 of the pooling and servicing agreement discloses all
material instances of noncompliance with the Relevant Servicing Criteria
and such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:_________________________
LASALLE BANK NATIONAL ASSOCIATION
By:____________________________________
[Name]
[Title]
EXHIBIT R-2-1
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER NO. 1
CERTIFICATION
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7 (the
"Trust"), issued pursuant to that certain Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp, as depositor (the "Depositor"), Capmark Finance
Inc. and Wachovia Bank, National Association, as master servicers
(the "Master Servicers"), LNR Partners, Inc., as special servicer
(the "Special Servicer"), Wells Fargo Bank, N.A., as trustee (the
"Trustee"), and LaSalle Bank National Association, as paying agent
(the "Paying Agent")
I, [identify the certifying individual], a [title] of Capmark
Finance Inc., on behalf of Capmark Finance Inc., certify to J.P. Morgan Chase
Commercial Mortgage Securities Corp. and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification in
delivering the Certification required by the Pooling and Servicing Agreement
relating to the Certificates (capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Pooling and Servicing
Agreement), that:
1. Based on my knowledge, the servicing information in the servicing reports
relating to the trust fund delivered by Capmark Finance Inc. to the Paying
Agent covering the fiscal year 20__, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by these servicing reports;
2. Based on my knowledge, the servicing information required to be provided
to the Paying Agent by Capmark Finance Inc. under the Pooling and
Servicing Agreement for inclusion in the reports to be filed by the Paying
Agent is included in the servicing reports delivered by Capmark Finance
Inc. to the Paying Agent;
3. I am responsible for reviewing the activities performed by Capmark Finance
Inc. under the Pooling and Servicing Agreement and based upon my knowledge
and the compliance review conducted in preparing the servicer compliance
statement required under Section 11.09 of the Pooling and Servicing
Agreement and except as disclosed in such compliance statement delivered
by Capmark Finance Inc. under Section 11.09 of the Pooling and Servicing
Agreement, the Master Servicer has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects in the year to
which such review applies; and
4. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by Capmark Finance Inc. in accordance
with Section 11.10 and Section 11.11 of the Pooling and Servicing
Agreement discloses with respect to Capmark Finance Inc. all material
instances of noncompliance with the Relevant Servicing Criteria and such
assessment of compliance with servicing criteria is fairly stated in all
material respects.
Date:_________________________
CAPMARK FINANCE INC.
By:___________________________________
[Name]
[Title]
EXHIBIT R-2-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER NO. 2
CERTIFICATION
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7 (the
"Trust"), issued pursuant to that certain Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp, as depositor (the "Depositor"), Capmark Finance
Inc. and Wachovia Bank, National Association, as master servicers
(the "Master Servicers"), LNR Partners, Inc., as special servicer
(the "Special Servicer"), Wells Fargo Bank, N.A., as trustee (the
"Trustee"), and LaSalle Bank National Association, as paying agent
(the "Paying Agent")
I, [identify the certifying individual], a [title] of Wachovia Bank,
National Association, on behalf of Wachovia Bank, National Association, certify
to J.P. Morgan Chase Commercial Mortgage Securities Corp. and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification in delivering the Certification required by the Pooling
and Servicing Agreement relating to the Certificates (capitalized terms used
herein without definition shall have the meanings assigned to such terms in the
Pooling and Servicing Agreement), that:
5. Based on my knowledge and the statements required to be made in the
corresponding certificate of the Special Servicer pursuant to Section
11.06 of the Pooling and Servicing Agreement, the servicing information in
the servicing reports relating to the trust fund delivered by Wachovia
Bank, National Association to the Paying Agent covering the fiscal year
20__, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by these
servicing reports;
6. Based on my knowledge and the statements required to be made in the
corresponding certificate of the Special Servicer pursuant to Section
11.06 of the Pooling and Servicing Agreement, the servicing information
required to be provided to the Paying Agent by Wachovia Bank, National
Association under the Pooling and Servicing Agreement for inclusion in the
reports to be filed by the Paying Agent is included in the servicing
reports delivered by Wachovia Bank, National Association to the Paying
Agent;
7. I am responsible for reviewing the activities performed by Wachovia Bank,
National Association under the Pooling and Servicing Agreement and based
upon my knowledge and the compliance review conducted in preparing the
servicer compliance statement required under Section 11.09 of the Pooling
and Servicing Agreement and except as disclosed in such compliance
statement delivered by Wachovia Bank, National Association under Section
11.09 of the Pooling and Servicing Agreement, the Master Servicer has
fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects in the year to which such review applies; and
8. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by Wachovia Bank, National Association
in accordance with Section 11.10 and Section 11.11 of the Pooling and
Servicing Agreement discloses with respect to Wachovia Bank, National
Association all material instances of noncompliance with the Relevant
Servicing Criteria and such assessment of compliance with servicing
criteria is fairly stated in all material respects.
Date:_________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
By:______________________________
[Name]
[Title]
EXHIBIT R-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7 (the
"Trust"), issued pursuant to that certain Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp, as depositor (the "Depositor"), Capmark Finance
Inc. and Wachovia Bank, National Association, as master servicers
(the "Master Servicers"), LNR Partners, Inc., as special servicer
(the "Special Servicer"), Wells Fargo Bank, N.A., as trustee (the
"Trustee"), and LaSalle Bank National Association, as paying agent
(the "Paying Agent")
I, [identify the certifying individual], a [title] of LNR Partners,
Inc., on behalf of LNR Partners, Inc., certify to J.P. Morgan Chase Commercial
Mortgage Securities Corp., Capmark Finance Inc. and Wachovia Bank, National
Association and their officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification in delivering the
Certification required by the Pooling and Servicing Agreement relating to the
Certificates (capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement), that:
1. Based on my knowledge, the servicing information in the servicing reports
or information relating to the trust fund delivered by the Special
Servicer to the Paying Agent and/or the Master Servicers covering the
fiscal year 20__, taken as a whole, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by these
servicing reports;
2. Based on my knowledge, the servicing information required to be provided
to the Paying Agent and/or Master Servicers by the Special Servicer under
the Pooling and Servicing Agreement for inclusion in the reports to be
filed by the Paying Agent is included in the servicing reports delivered
by the Special Servicer to the Paying Agent and/or Master Servicers;
3. I am responsible for reviewing the activities performed by the Special
Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the Pooling and
Servicing Agreement with respect to the Special Servicer, and except as
disclosed in such compliance statement delivered by the Special Servicer
under Section 11.09 of the Pooling and Servicing Agreement, the Special
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects in the year to which such review
applies; and
4. The report on assessment of the Special Servicer's compliance with
servicing criteria and the related attestation report on assessment of the
Special Servicer's compliance with servicing criteria required to be
delivered in accordance with Section 11.10 and Section 11.11 of the
Pooling and Servicing Agreement disclose all material instances of
noncompliance with the Relevant Servicing Criteria and such assessment of
the Special Servicer's compliance with servicing criteria is fairly stated
in all material respects.
Date:_________________________
LNR PARTNERS, INC.
By:__________________________________
[Name]
[Title]
EXHIBIT S
INITIAL COMPANION HOLDERS
The initial Companion Holder of the One & Two Prudential Plaza A2 Note shall be
as set forth in the One & Two Prudential Plaza Intercreditor Agreement.
Caplease, LP shall be the initial Companion Holder with respect to the Pearson
PLC Building-Lawrence AB Mortgage Loan.
Nomura Credit & Capital, Inc. shall be the initial Companion Holder with respect
to the JQH Hotel Portfolio AB Mortgage Loan.
CBA-Mezzanine Capital Finance, LLC shall be the initial Companion Holder with
respect to the Knoll Crest AB Mortgage Loan.
Capmark Finance Inc. shall be the initial Companion Holder with respect to the
PennCom Plaza AB Mortgage Loan.
EXHIBIT T
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services, a division of The
McGraw-Hill
Companies, Inc.
55 Water Street
New York, New York 10041
Attn: Commercial Mortgage Surveillance
From: [Capmark Finance Inc.] [Wachovia Bank, National
Association], in its capacity as a Master Servicer (the
"Master Servicer") under the Pooling and Servicing
Agreement dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among the Master Servicer, [Capmark
Finance Inc.] [Wachovia Bank, National Association], as a
Master Servicer, Wells Fargo Bank, N.A., as Trustee,
LaSalle Bank National Association, as Paying Agent, and
others.
Date: _________, 20___
Re: J.P. Morgan Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series
2006-LDP7
Mortgage Loan (the "Mortgage Loan") identified by loan number
_____ on the Mortgage Loan Schedule attached to the Pooling
and Servicing Agreement and heretofore secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule
by the following names:
________________________
________________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As a Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by S&P, (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the S&P Criteria) in the name of the Defeasance Obligor, which account
is maintained as a securities account by a securities intermediary and has
been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by the
Master Servicer in accordance with the Servicing Standard stating that (i)
revenues from the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) [The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[CAPMARK FINANCE INC.] [WACHOVIA BANK,
NATIONAL ASSOCIATION]
By: __________________________________
Name:
Title:
EXHIBIT U
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER
OR PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, JPMorgan 2006-LDP7
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7
---------------------------------------------------------------
Pursuant to the Pooling and Servicing Agreement, dated as of June 1,
2006 (the "Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Capmark Finance Inc. and Wachovia Bank, National
Association, as Master Servicers, LNR Partners, Inc., as Special Servicer, Wells
Fargo Bank, N.A., as Trustee and LaSalle Bank National Association, as Paying
Agent, with respect to the J.P. Morgan Chase Commercial Mortgage Securities
Trust 2006-LDP7, Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Paying Agent's Internet Website pursuant to Section 4.02
of the Agreement.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior written
consent of the Paying Agent, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives in any manner
whatsoever, in whole or in part; provided that the undersigned may provide all
or any part of the Information to any other person or entity that is
contemplating the purchase of any Certificate, but only if such person or entity
confirms in writing such prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any part of
the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER]
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT V
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP7,
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP7
----------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling Servicing Agreement,
dated as of June 1, 2006 (the "Agreement"), by and among J.P. Morgan Chase
Commercial Mortgage Securities Corp., as Depositor, Capmark Finance Inc. and
Wachovia Bank, National Association, as Master Servicers, LNR Partners, Inc., as
Special Servicer, Wells Fargo Bank, N.A., as Trustee and LaSalle Bank National
Association, as Paying Agent, the undersigned, as Trustee, hereby certifies
that, except as noted on the attached Trustee Exception Report, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or for which a Liquidation Event has occurred) the Trustee has,
subject to Section 2.02(e) of the Agreement, reviewed the documents delivered to
it pursuant to Section 2.01 of the Agreement and has determined that (i) all
documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and the
required officer's certificate), if any, of the definition of "Mortgage File,"
as applicable, are in its possession, (ii) the foregoing documents delivered or
caused to be delivered by the Mortgage Loan Sellers have been reviewed by it or
by a Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Agreement.
WELLS FARGO BANK, N.A.,
as Trustee
By:____________________________________
Name:
Title:
Collateral ID Property Name Investor ID DocType Exception
------------- ------------------------------------------ ----------- ------- ---------
12006LDP7 Westfield Centro Portfolio JPMCB NOTE 10
22006LDP7 One & Two Prudential Plaza JPMCB MORT 20
32006LDP7 Bella Terra Retail Capmark MORT 68
32006LDP7 Bella Terra Retail Capmark NOTE 14
42006LDP7 CTTWB Associates LP EURO ALNV 02
62006LDP7 Macerich Salisbury B LLC EURO MORT 20
82006LDP7 Four Penn Center Owner, LLC EURO ALNV 02
82006LDP7 Four Penn Center Owner, LLC EURO MORT 20
92006LDP7 Gardens on El Paseo NCCI MORT 20
112006LDP7 411 East Wisconsin LaSalle MORT 20
112006LDP7 411 East Wisconsin LaSalle NOTE 14
112006LDP7 411 East Wisconsin LaSalle NOTE 10
132006LDP7 Shoreview Corporate Center LaSalle MORT 20
132006LDP7 Shoreview Corporate Center LaSalle TPOL 01
152006LDP7 Powers Ferry Landing East LaSalle MORT 20
172006LDP7 K-V Pharmaceutical Portfolio LaSalle MORT 20
182006LDP7 San Valiente JPMCB MORT 20
192006LDP7 Hilton - Lisle / Naperville Capmark MORT 68
1A2006LDP7 Westfield Midway JPMCB MORT 20
1B2006LDP7 Westfield Enfield JPMCB MORT 20
1C2006LDP7 Westfield West Park JPMCB MORT 20
1D2006LDP7 Westfield Eagle Rock JPMCB MORT 20
1E2006LDP7 Westfield Westland Town Center JPMCB MORT 20
202006LDP7 Home Depot Plaza JPMCB MORT 20
212006LDP7 GC Sacramento Office Portfolio JPMCB MORT 20
222006LDP7 Universe at Temecula Park, LLC EURO MORT 20
242006LDP7 Fifth/Alder Associates, L.P. EURO MORT 20
262006LDP7 Shoppes at Jupiter Capmark MORT 68
292006LDP7 Inland - Colony Square LaSalle MORT 20
302006LDP7 550, 650 and 701 Warrenville Road Offices Capmark MORT 68
312006LDP7 Desert Palm Apartments JPMCB MORT 20
322006LDP7 Commerce Park JPMCB MORT 96
342006LDP7 Westgate Plaza Shopping Center LaSalle MORT 20
352006LDP7 One Ontario Commercial Capmark MORT 20
362006LDP7 Cambridge Crossing Capmark MORT 68
372006LDP7 101 Redwood Shores JPMCB MORT 96
382006LDP7 Kimco Columbia- Hickory Ridge Capmark MORT 68
402006LDP7 Crowne Plaza Sawgrass Mills Capmark MORT 68
432006LDP7 Schiff Nutrition International JPMCB MORT 20
442006LDP7 1333 Main Street & Vista Center LaSalle MORT 20
452006LDP7 Coral Palms Apartments LaSalle MORT 20
472006LDP7 Nilfisk Advance - MN JPMCB MORT 20
502006LDP7 Inland - Craig Crossing LaSalle MORT 20
512006LDP7 Kimco Columbia- Columbia Crossing Capmark MORT 20
532006LDP7 Kimco Columbia - Dorsey's Village Capmark MORT 68
542006LDP7 ELS - Rambler's Rest Resort LaSalle MORT 20
562006LDP7 Sephora Distribution Facility JPMCB MORT 20
572006LDP7 Crowne Plaza - Clark Capmark MORT 68
582006LDP7 Martin's Landing JPMCB ALNV 14
582006LDP7 Martin's Landing JPMCB MORT 96
582006LDP7 Martin's Landing JPMCB NOTE 14
5A2006LDP7 Embassy Suites NCCI MORT 20
5B2006LDP7 Renaissance Hotel NCCI MORT 20
5E2006LDP7 Sheraton NCCI MORT 20
5F2006LDP7 Residence Inn by Marriott NCCI MORT 20
602006LDP7 Cavaliere Companies JPMCB MORT 20
632006LDP7 Cotton Mill Studios JPMCB MORT 20
652006LDP7 Malden Stop & Shop NCCI MORT 68
682006LDP7 Wallkill Town Center NCCI MORT 26
682006LDP7 Wallkill Town Center NCCI MORT 20
692006LDP7 Inland Olivet Church LaSalle MORT 20
702006LDP7 One Glen Lakes-Landgem JPMCB MORT 20
712006LDP7 176 Federal Street LaSalle MORT 20
712006LDP7 176 Federal Street LaSalle TPOL 01
732006LDP7 20-30 Murray Hill Parkway Capmark MORT 20
742006LDP7 Liberties Walk Capmark MORT 68
762006LDP7 Kimco Columbia- Harpers Choice Capmark MORT 68
772006LDP7 Remby Investments, LLC EURO MORT 20
772006LDP7 Remby Investments, LLC EURO TPOL 98
782006LDP7 Latham Square LLC EURO MORT 20
792006LDP7 Swampscott Stop & Shop NCCI MORT 68
832006LDP7 Laurel Hill Site Center LLC EURO MORT 20
842006LDP7 Shellmound Office Building JPMCB MORT 20
852006LDP7 850 - 950 Warrenville Road Capmark MORT 68
862006LDP7 Hilton Garden Inn - Knoxville LaSalle MORT 20
872006LDP7 231 Ship Canal Parkway JPMCB MORT 20
892006LDP7 Cameron Creek Apartments JPMCB MORT 20
902006LDP7 Hampton Inn Portsmouth LaSalle MORT 20
932006LDP7 Leggett & Platt JPMCB MORT 20
942006LDP7 7500 Melrose Avenue JPMCB MORT 96
952006LDP7 ELS - Fiesta Grande I & II LaSalle MORT 20
962006LDP7 Galleria Apartments LaSalle MORT 20
972006LDP7 Pepperwood Townhomes JPMCB MORT 20
982006LDP7 Best Buy (MN) Capmark MORT 68
992006LDP7 Framingham Stop & Shop NCCI MORT 68
1012006LDP7 West Highland Shopping Center Capmark MORT 68
1022006LDP7 Heatherbrae Commons Apts NCCI MORT 20
1032006LDP7 Cobblestone Village Shopping Center Capmark MORT 68
1052006LDP7 Knoll Crest JPMCB MORT 20
1062006LDP7 HSA-Green Bay LaSalle MORT 20
1072006LDP7 Desert Courtyards LaSalle MORT 20
1082006LDP7 James Island Center JPMCB MORT 20
1092006LDP7 Bristol Stop & Shop NCCI MORT 68
1102006LDP7 Northwood Apartments JPMCB MORT 20
1112006LDP7 Woodgate at Enfield Apartments JPMCB MORT 20
1122006LDP7 Rochester/ Hilton Garden Inn NCCI MORT 23
1132006LDP7 Town Center at Highlands Ranch JPMCB MORT 20
1142006LDP7 Travelers Building JPMCB ALNV 14
1142006LDP7 Travelers Building JPMCB MORT 96
1142006LDP7 Travelers Building JPMCB NOTE 14
1152006LDP7 Ramada Inn - Carlsbad LaSalle MORT 20
1162006LDP7 Inland - Sentry Office Building LaSalle MORT 20
1172006LDP7 Poquoson Commons LaSalle MORT 20
1182006LDP7 Five Points West Shopping Center JPMCB MORT 20
1192006LDP7 ELS - Tropical Palms LaSalle MORT 20
1202006LDP7 Heatherstone Apartments JPMCB MORT 20
1212006LDP7 Deerbrook SC LaSalle MORT 20
1222006LDP7 Yakima Avenue Plaza Retail LaSalle MORT 20
1232006LDP7 Marshall's - Encino LaSalle MORT 20
1242006LDP7 Camellia Tower Office Building LaSalle MORT 20
1252006LDP7 Greystone Professional Center LaSalle MORT 20
1262006LDP7 Roosevelt Partners, LTD EURO MORT 20
1272006LDP7 ELS - Venture In LaSalle MORT 20
1282006LDP7 Arbor Village Apartments JPMCB MORT 20
1292006LDP7 The Ledges Apts JPMCB MORT 20
1312006LDP7 Country Club Corner JPMCB MORT 20
1332006LDP7 Trinity Place LaSalle MORT 20
1342006LDP7 380 N. Old Woodward Bldg JPMCB MORT 20
1372006LDP7 Ridgecrest MHP LaSalle MORT 20
1372006LDP7 Ridgecrest MHP LaSalle NOTE 14
1382006LDP7 Cedar Creek Mall LaSalle MORT 20
1392006LDP7 Coeur D'Alene Center LLC EURO MORT 20
1412006LDP7 840 Cottman Avenue JPMCB MORT 20
1422006LDP7 One Pathmark Plaza JPMCB MORT 20
1432006LDP7 Nilfisk Advance - AR JPMCB MORT 20
1442006LDP7 2001 Addison Street JPMCB MORT 20
1462006LDP7 Signature Center LaSalle MORT 20
1472006LDP7 StorageMax Northtown Capmark MORT 20
1482006LDP7 550 West B Street NCCI MORT 20
1492006LDP7 4801 Congress, LLC EURO MORT 20
1502006LDP7 Walnut Creek Self Storage Capmark MORT 68
1512006LDP7 Walgreen's - Chanhassen, MN LaSalle MORT 20
1522006LDP7 Fairwind Apartments LaSalle MORT 20
1552006LDP7 Westmoreland Heights Capmark MORT 68
1562006LDP7 Hampton Inn - Pearland, TX LaSalle MORT 20
1592006LDP7 ELS - Capri MHC & RV LaSalle MORT 20
1602006LDP7 Lomas Santa Fe Office LaSalle MORT 20
1612006LDP7 Wendover Square at James Landing LaSalle MORT 20
1622006LDP7 The Arbaugh Redevelopment LaSalle MORT 20
1632006LDP7 Modern Estates MHC NCCI MORT 20
1642006LDP7 Riverside Building JPMCB MORT 20
1652006LDP7 ELS - Inlet Oaks Village LaSalle MORT 20
1662006LDP7 Suburban Extended Stay - Kennesaw LaSalle MORT 20
1672006LDP7 350 Ranger Avenue JPMCB MORT 20
1682006LDP7 Olympia Village Apartments JPMCB MORT 20
1692006LDP7 Warminster Center JPMCB MORT 20
1702006LDP7 Salisbury Northgate JPMCB MORT 20
1712006LDP7 2621 S. Bristol Street JPMCB MORT 96
1722006LDP7 The Shoppes at Stapley JPMCB MORT 20
1732006LDP7 Brighton Park Apartments LaSalle MORT 20
1742006LDP7 Meadowbrook Professional Plaza LaSalle MORT 20
1752006LDP7 Albertsons Shopping Center NCCI MORT 20
1762006LDP7 Hampton Inn Austin-Round Rock LaSalle MORT 20
1782006LDP7 Long Lake Retail Center NCCI MORT 20
1792006LDP7 StorageMax Midtown Capmark MORT 68
1822006LDP7 Walgreens - Kennewick, WA JPMCB MORT 20
1842006LDP7 Rangeline Commercial Park and Mini-Storage Capmark MORT 68
1872006LDP7 West Plaza Shopping Center NCCI MORT 20
1892006LDP7 United Penn Plaza JPMCB MORT 20
1902006LDP7 35 N. Arroyo Parkway JPMCB MORT 20
1912006LDP7 Windsong Mobile Village NCCI MORT 20
1922006LDP7 Cypresswood Apartments LaSalle MORT 20
1932006LDP7 Lone Star Self Storage JPMCB MORT 20
1942006LDP7 Grandview MHP/Rancheria Mobile Estates NCCI MORT 20
1952006LDP7 Fortress Secure Mini Storage JPMCB MORT 20
1962006LDP7 Highlander Building NCCI MORT 20
1982006LDP7 Inland Eckerds - Hellertown LaSalle MORT 20
1992006LDP7 Inland Eckerds - Lebanon LaSalle MORT 20
2002006LDP7 Nolan Ridge Apartments LaSalle MORT 20
2022006LDP7 Inland Eckerds - Punxsutawny LaSalle MORT 20
2032006LDP7 Towne Pointe JPMCB MORT 20
2052006LDP7 Neshonoc Lakeside RV Resort LaSalle MORT 20
2062006LDP7 Lake Lawrenceville Shopping Center LaSalle MORT 20
2072006LDP7 Caribbean Village LaSalle MORT 20
2082006LDP7 Mariner Self Storage JPMCB MORT 20
2092006LDP7 The Center on Bastanchury LaSalle MORT 20
2102006LDP7 Broadway Crossing LaSalle MORT 20
2112006LDP7 Riverwind Apartments LaSalle MORT 20
2122006LDP7 8500 Edinbrook Parkway JPMCB MORT 20
2132006LDP7 Plaza 18 LaSalle MORT 20
2142006LDP7 Gladiola Manor Apartments JPMCB MORT 20
2152006LDP7 Pilot Knob Square NCCI MORT 20
2162006LDP7 Lovejoy Commons LaSalle MORT 20
2202006LDP7 Days Inn - Camarillo NCCI MORT 20
2252006LDP7 Discount Storage LaSalle MORT 20
2262006LDP7 Sunbelt Storage LaSalle MORT 20
2272006LDP7 ELS - Foothills West LaSalle MORT 20
2312006LDP7 ELS - Casita Verde LaSalle MORT 20
2332006LDP7 Casa Grande & Southwick Apartments LaSalle MORT 20
2352006LDP7 High Chaparral Mobile Home/RV Park NCCI MORT 20
2362006LDP7 Safeway Self Storage LaSalle MORT 20
2382006LDP7 Hillside Medical Office LaSalle MORT 20
2402006LDP7 The Lobby LaSalle MORT 20
2412006LDP7 Center Point Business Park LaSalle MORT 20
2422006LDP7 Walmart Plaza NCCI MORT 20
2452006LDP7 Parkwood / Lakewood Apartments LaSalle MORT 20
2472006LDP7 Walgreens (Kalamazoo, MI) NCCI MORT 20
2482006LDP7 Wagner MHP East and West NCCI MORT 20
2512006LDP7 Morning Meadow LaSalle MORT 20
2532006LDP7 4878 Arthur Kill Road NCCI MORT 68
2552006LDP7 Rinkoff Rice Village LaSalle MORT 20
2552006LDP7 Rinkoff Rice Village LaSalle TCMT 01
2562006LDP7 Best American Self Storage LaSalle MORT 20
2572006LDP7 Napa Retail Center LaSalle MORT 20
2582006LDP7 Pecan Villa Apartments LaSalle MORT 20
2592006LDP7 Columbia Self Storage LaSalle MORT 20
2602006LDP7 Kingsridge Park LaSalle MORT 20
2612006LDP7 Elm Street Mixed Use LaSalle MORT 20
2622006LDP7 Fort Worth Retail LaSalle MORT 20
2632006LDP7 Walgreens - Azle, TX LaSalle MORT 20
2652006LDP7 Penske Truck Leasing LaSalle MORT 20
2672006LDP7 Northridge Square LaSalle MORT 20
2682006LDP7 Woodedge Shopping Center LaSalle MORT 20
2692006LDP7 Valley View MHP NCCI MORT 20
59A2006LDP7 DG #197437 NCCI MORT 96
59B2006LDP7 DG #197428 NCCI MORT 96
59C2006LDP7 DG #197434 NCCI MORT 96
59D2006LDP7 DG #197463 NCCI MORT 96
59E2006LDP7 DG #197464 NCCI MORT 96
59F2006LDP7 DG #197429 NCCI MORT 96
59G2006LDP7 DG #197446 NCCI MORT 96
59H2006LDP7 DG #197438 NCCI MORT 96
59I2006LDP7 DG #197432 NCCI MORT 96
59J2006LDP7 DG #197444 NCCI MORT 96
59K2006LDP7 DG #19750 NCCI MORT 96
59L2006LDP7 DG #197440 NCCI MORT 96
59M2006LDP7 DG #197426 NCCI MORT 96
59N2006LDP7 DG #197443 NCCI MORT 96
59O2006LDP7 DG #197430 NCCI MORT 96
59P2006LDP7 DG #197427 NCCI MORT 96
59Q2006LDP7 DG #197436 NCCI MORT 96
59R2006LDP7 DG #197431 NCCI MORT 96
59S2006LDP7 DG #197413 NCCI MORT 96
59T2006LDP7 DG #197435 NCCI MORT 96
59U2006LDP7 DG #197465 NCCI MORT 96
59V2006LDP7 DG #197447 NCCI MORT 96
59W2006LDP7 DG #197439 NCCI MORT 96
59X2006LDP7 DG #197433 NCCI MORT 96
59Y2006LDP7 DG #197445 NCCI MORT 96
59Z2006LDP7 DG #197448 NCCI MORT 96
59AB2006LDP7 DG #197441 NCCI MORT 96
Collateral ID Exception Description Notation
------------- --------------------------------------------------------- ------------------------------------------------------
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22006LDP7 UNRECORDED ORIGINAL
32006LDP7 CERTIFIED TRUE COPY
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62006LDP7 UNRECORDED ORIGINAL MACERICH SGC & MACERICH SALISBURY TO EURO
82006LDP7 RECEIVED SIGNED PDF; ORIGINAL BEING OVERNIGHTED EURO TO BLANK
82006LDP7 UNRECORDED ORIGINAL FOUR PENN CENTER OWNER TO EURO
92006LDP7 UNRECORDED ORIGINAL GARDENS SPE II LLC TO NCCI
112006LDP7 UNRECORDED ORIGINAL
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132006LDP7 UNRECORDED ORIGINAL
132006LDP7 MISSING
152006LDP7 UNRECORDED ORIGINAL
172006LDP7 UNRECORDED ORIGINAL
182006LDP7 UNRECORDED ORIGINAL
192006LDP7 CERTIFIED TRUE COPY
1A2006LDP7 UNRECORDED ORIGINAL @
1B2006LDP7 UNRECORDED ORIGINAL @
1C2006LDP7 UNRECORDED ORIGINAL @
1D2006LDP7 UNRECORDED ORIGINAL @
1E2006LDP7 UNRECORDED ORIGINAL @
202006LDP7 UNRECORDED ORIGINAL
212006LDP7 UNRECORDED ORIGINAL
222006LDP7 UNRECORDED ORIGINAL UNIVERSE AT TEMECULA PARK LLC TO EURO
242006LDP7 UNRECORDED ORIGINAL (LINE OF CREDIT) FIFTH/ALDER ASSOCIATES LP TO EURO
262006LDP7 CERTIFIED TRUE COPY
292006LDP7 UNRECORDED ORIGINAL
302006LDP7 CERTIFIED TRUE COPY
312006LDP7 UNRECORDED ORIGINAL
322006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
342006LDP7 UNRECORDED ORIGINAL
352006LDP7 UNRECORDED ORIGINAL
362006LDP7 CERTIFIED TRUE COPY
372006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
382006LDP7 CERTIFIED TRUE COPY
402006LDP7 CERTIFIED TRUE COPY
432006LDP7 UNRECORDED ORIGINAL
442006LDP7 UNRECORDED ORIGINAL
452006LDP7 UNRECORDED ORIGINAL
472006LDP7 UNRECORDED ORIGINAL
502006LDP7 UNRECORDED ORIGINAL
512006LDP7 UNRECORDED ORIGINAL
532006LDP7 CERTIFIED TRUE COPY
542006LDP7 UNRECORDED ORIGINAL
562006LDP7 UNRECORDED ORIGINAL
572006LDP7 CERTIFIED TRUE COPY
582006LDP7 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
582006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
582006LDP7 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
5A2006LDP7 UNRECORDED ORIGINAL
5B2006LDP7 UNRECORDED ORIGINAL
5E2006LDP7 UNRECORDED ORIGINAL LEASEHOLD
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602006LDP7 UNRECORDED ORIGINAL
632006LDP7 UNRECORDED ORIGINAL
652006LDP7 CERTIFIED TRUE COPY INLAND AMERICAN MALDEN, LLC TO NCCI
682006LDP7 SIGNATURE IS MISSING UNRECORDED ORIGINAL RECEIVED WITHOUT LENDER SIGNATURE
682006LDP7 UNRECORDED ORIGINAL GAP MORTGAGE
692006LDP7 UNRECORDED ORIGINAL
702006LDP7 UNRECORDED ORIGINAL
712006LDP7 UNRECORDED ORIGINAL
712006LDP7 MISSING
732006LDP7 UNRECORDED ORIGINAL
742006LDP7 CERTIFIED TRUE COPY
762006LDP7 CERTIFIED TRUE COPY
772006LDP7 UNRECORDED ORIGINAL REMBY INVESTMENTS LLC TO EURO
772006LDP7 MISSING. TITLE COMMITMENT RECEIVED
782006LDP7 UNRECORDED ORIGINAL LATHAM SQUARE LLC TO EURO
792006LDP7 CERTIFIED TRUE COPY INLAND AMERICAN SWAMPSCOTT, LLC TO NCCI
832006LDP7 UNRECORDED ORIGINAL LAUREL HILL SITE CENTER TO EURO
842006LDP7 UNRECORDED ORIGINAL
852006LDP7 CERTIFIED TRUE COPY
862006LDP7 UNRECORDED ORIGINAL
872006LDP7 UNRECORDED ORIGINAL
892006LDP7 UNRECORDED ORIGINAL
902006LDP7 UNRECORDED ORIGINAL
932006LDP7 UNRECORDED ORIGINAL
942006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
952006LDP7 UNRECORDED ORIGINAL
962006LDP7 UNRECORDED ORIGINAL
972006LDP7 UNRECORDED ORIGINAL
982006LDP7 CERTIFIED TRUE COPY
992006LDP7 CERTIFIED TRUE COPY INLAND AMERICAN FRAMINGHAM, LLC TO NCCI
1012006LDP7 CERTIFIED TRUE COPY
1022006LDP7 UNRECORDED ORIGINAL 13 BORROWERS (SEE MEMO) TO NCCI
1032006LDP7 CERTIFIED TRUE COPY
1052006LDP7 UNRECORDED ORIGINAL
1062006LDP7 UNRECORDED ORIGINAL
1072006LDP7 UNRECORDED ORIGINAL
1082006LDP7 UNRECORDED ORIGINAL
1092006LDP7 CERTIFIED TRUE COPY INLAND AMERICAN BRISTOL, LLC TO NCCI
1102006LDP7 UNRECORDED ORIGINAL
1112006LDP7 UNRECORDED ORIGINAL
1122006LDP7 NOTARY, ACKNOWLEDGMENT, OR WITNESS INFORMATION IS MISSING NOTARY IS A COPY
1132006LDP7 UNRECORDED ORIGINAL
1142006LDP7 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE ALLONGE REC'D $7,335,000.
1142006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1142006LDP7 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE REC'D $7,335,000. ON SCEDULE $7,825,000.
1152006LDP7 UNRECORDED ORIGINAL
1162006LDP7 UNRECORDED ORIGINAL
1172006LDP7 UNRECORDED ORIGINAL
1182006LDP7 UNRECORDED ORIGINAL
1192006LDP7 UNRECORDED ORIGINAL
1202006LDP7 UNRECORDED ORIGINAL
1212006LDP7 UNRECORDED ORIGINAL
1222006LDP7 UNRECORDED ORIGINAL
1232006LDP7 UNRECORDED ORIGINAL
1242006LDP7 UNRECORDED ORIGINAL
1252006LDP7 UNRECORDED ORIGINAL
1262006LDP7 UNRECORDED ORIGINAL ROOSEVELT PARTNERS LTD TO EURO
1272006LDP7 UNRECORDED ORIGINAL
1282006LDP7 UNRECORDED ORIGINAL
1292006LDP7 UNRECORDED ORIGINAL
1312006LDP7 UNRECORDED ORIGINAL
1332006LDP7 UNRECORDED ORIGINAL
1342006LDP7 UNRECORDED ORIGINAL
1372006LDP7 UNRECORDED ORIGINAL
1372006LDP7 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE NOTE:$6,350,000; SCHD:$6,319,851.57
1382006LDP7 UNRECORDED ORIGINAL
1392006LDP7 UNRECORDED ORIGINAL COEUR D'ALENE CENTER LLC TO EURO
1412006LDP7 UNRECORDED ORIGINAL
1422006LDP7 UNRECORDED ORIGINAL
1432006LDP7 UNRECORDED ORIGINAL
1442006LDP7 UNRECORDED ORIGINAL
1462006LDP7 UNRECORDED ORIGINAL
1472006LDP7 UNRECORDED ORIGINAL
1482006LDP7 UNRECORDED ORIGINAL 550 WEST B & 550 FLEENOR INVESTORS TO NCCI
1492006LDP7 UNRECORDED ORIGINAL 4801 CONGRESS LLC TO EURO
1502006LDP7 CERTIFIED TRUE COPY
1512006LDP7 UNRECORDED ORIGINAL
1522006LDP7 UNRECORDED ORIGINAL
1552006LDP7 CERTIFIED TRUE COPY
1562006LDP7 UNRECORDED ORIGINAL
1592006LDP7 UNRECORDED ORIGINAL
1602006LDP7 UNRECORDED ORIGINAL
1612006LDP7 UNRECORDED ORIGINAL
1622006LDP7 UNRECORDED ORIGINAL
1632006LDP7 UNRECORDED ORIGINAL MODERN ESTATES PARK, LLC TO UNION
1642006LDP7 UNRECORDED ORIGINAL
1652006LDP7 UNRECORDED ORIGINAL
1662006LDP7 UNRECORDED ORIGINAL
1672006LDP7 UNRECORDED ORIGINAL
1682006LDP7 UNRECORDED ORIGINAL
1692006LDP7 UNRECORDED ORIGINAL
1702006LDP7 UNRECORDED ORIGINAL
1712006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1722006LDP7 UNRECORDED ORIGINAL
1732006LDP7 UNRECORDED ORIGINAL
1742006LDP7 UNRECORDED ORIGINAL
1752006LDP7 UNRECORDED ORIGINAL WVN, LLC TO NCCI
1762006LDP7 UNRECORDED ORIGINAL
1782006LDP7 UNRECORDED ORIGINAL LONG LAKE PROP & WARREN & KNEFF TO NCCI
1792006LDP7 CERTIFIED TRUE COPY
1822006LDP7 UNRECORDED ORIGINAL
1842006LDP7 CERTIFIED TRUE COPY
1872006LDP7 UNRECORDED ORIGINAL
1892006LDP7 UNRECORDED ORIGINAL
1902006LDP7 UNRECORDED ORIGINAL
1912006LDP7 UNRECORDED ORIGINAL
1922006LDP7 UNRECORDED ORIGINAL
1932006LDP7 UNRECORDED ORIGINAL
1942006LDP7 UNRECORDED ORIGINAL RANCHERIA MHP, LLC TO UNION
1952006LDP7 UNRECORDED ORIGINAL
1962006LDP7 UNRECORDED ORIGINAL
1982006LDP7 UNRECORDED ORIGINAL
1992006LDP7 UNRECORDED ORIGINAL
2002006LDP7 UNRECORDED ORIGINAL
2022006LDP7 UNRECORDED ORIGINAL
2032006LDP7 UNRECORDED ORIGINAL
2052006LDP7 UNRECORDED ORIGINAL
2062006LDP7 UNRECORDED ORIGINAL
2072006LDP7 UNRECORDED ORIGINAL
2082006LDP7 UNRECORDED ORIGINAL
2092006LDP7 UNRECORDED ORIGINAL
2102006LDP7 UNRECORDED ORIGINAL
2112006LDP7 UNRECORDED ORIGINAL
2122006LDP7 UNRECORDED ORIGINAL
2132006LDP7 UNRECORDED ORIGINAL
2142006LDP7 UNRECORDED ORIGINAL
2152006LDP7 UNRECORDED ORIGINAL
2162006LDP7 UNRECORDED ORIGINAL
2202006LDP7 UNRECORDED ORIGINAL CAMARILLO MOTELS, LLC TO NCCI
2252006LDP7 UNRECORDED ORIGINAL
2262006LDP7 UNRECORDED ORIGINAL
2272006LDP7 UNRECORDED ORIGINAL
2312006LDP7 UNRECORDED ORIGINAL
2332006LDP7 UNRECORDED ORIGINAL (HINDS) (A & B)
2352006LDP7 UNRECORDED ORIGINAL HIGH CHAPARRAL PROPERTIES, LLC TO NCCI
2362006LDP7 UNRECORDED ORIGINAL
2382006LDP7 UNRECORDED ORIGINAL
2402006LDP7 UNRECORDED ORIGINAL
2412006LDP7 UNRECORDED ORIGINAL
2422006LDP7 UNRECORDED ORIGINAL PETERSBURG BL, LLC TO NCCI
2452006LDP7 UNRECORDED ORIGINAL
2472006LDP7 UNRECORDED ORIGINAL ANNE M SCHWERDT INVESTMENTS TO NCCI
2482006LDP7 UNRECORDED ORIGINAL WAGNER MHP, LLC TO UNION
2512006LDP7 UNRECORDED ORIGINAL
2532006LDP7 CERTIFIED TRUE COPY
2552006LDP7 UNRECORDED ORIGINAL
2552006LDP7 MISSING
2562006LDP7 UNRECORDED ORIGINAL
2572006LDP7 UNRECORDED ORIGINAL
2582006LDP7 UNRECORDED ORIGINAL
2592006LDP7 UNRECORDED ORIGINAL
2602006LDP7 UNRECORDED ORIGINAL
2612006LDP7 UNRECORDED ORIGINAL
2622006LDP7 UNRECORDED ORIGINAL
2632006LDP7 UNRECORDED ORIGINAL
2652006LDP7 UNRECORDED ORIGINAL
2672006LDP7 UNRECORDED ORIGINAL
2682006LDP7 UNRECORDED ORIGINAL
2692006LDP7 UNRECORDED ORIGINAL OPEN-END
59A2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59B2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59C2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59D2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
59E2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59F2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59G2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59H2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59I2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59J2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59K2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59L2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59M2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59N2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59O2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59P2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59Q2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59R2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59S2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
59T2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59U2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59V2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59W2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59X2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59Y2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59Z2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
59AB2006LDP7 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY 6 BORROWERS - SEE MEMO TO NCCI
EXHIBIT W
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the referenced party shall
address, at a minimum, the criteria identified below as "Applicable Servicing
Criteria" applicable to such party, as such criteria may be updated or limited
by the Commission or its staff (including, without limitation, not requiring the
delivery of certain of the items set forth on this Exhibit based on interpretive
guidance provided by the Commission or its staff relating to Item 1122 of
Regulation AB):
------------------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Paying Agent
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies Paying Agent
and procedures are instituted to monitor the third party's performance and Master Servicer
compliance with such servicing activities. Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer N/A
for the mortgage loans are maintained.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the Custodian
amount of coverage required by and otherwise in accordance with the terms of Master Servicer
the transaction agreements. Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank Paying Agent
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor Paying Agent
are made only by authorized personnel.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
made, reviewed and approved as specified in the transaction agreements. Trustee
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Paying Agent
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Paying Agent
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a foreign Special Servicer
financial institution means a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Paying Agent
Master Servicer
Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed Paying Agent
securities related bank accounts, including custodial accounts and related bank Master Servicer
clearing accounts. These reconciliations are (A) mathematically accurate; Special Servicer
(B) prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C) reviewed
and approved by someone other than the person who prepared the reconciliation;
and (D) contain explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original identification, or such
other number of days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Paying Agent
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Reporting Servicer.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Paying Agent
timeframes, distribution priority and other terms set forth in the transaction
agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Paying Agent
Servicer's investor records, or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Paying Agent
checks, or other form of payment, or custodial bank statements.
------------------------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Trustee
and approved in accordance with any conditions or requirements in the Master Servicer
transaction agreements. Special Servicer
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the Master Servicer
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number
of days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage
loan documents.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Reporting Servicer's records regarding the mortgage loans agree with the Master Servicer
Reporting Servicer's records with respect to an obligor's unpaid principal
balance.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and related
pool asset documents.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and Special Servicer
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable)
are initiated, conducted and concluded in accordance with the timeframes or
other requirements established by the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Such Special Servicer
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
variable rates are computed based on the related mortgage loan documents.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): Master Servicer
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days specified
in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates,
or such other number of days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf Master Servicer
of an obligor are paid from the servicer's funds and not charged to the
obligor, unless the late payment was due to the obligor's error or omission.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days Master Servicer
to the obligor's records maintained by the servicer, or such other number of
days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
recorded in accordance with the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT X
ADDITIONAL FORM 10-D DISCLOSURE
-------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-------------------------------------------------------------------------------
Item 1: Distribution and Pool Paying Agent
Performance Information Depositor
Any information required by Item 1121
of Regulation AB which is NOT included
on the Monthly Statement
-------------------------------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Pooling and
Servicing Agreement (as to
per Item 1117 of Regulation AB themselves), (ii) the Trustee, the
Paying Agent, the Master Servicers
and the Special Servicer as to the
Trust (in the case of the Master
Servicers, Trustee and Special
Servicer, to be reported by the party
controlling such litigation pursuant
to Section 3.33), (iii) the Depositor
as to the sponsors, any 1110(b)
originator, and any 1100(d)(1) party
-------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Depositor
Proceeds
-------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Paying Agent
Securities
-------------------------------------------------------------------------------
Item 5: Submission of Matters to a Paying Agent
Vote of Security Holders
-------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Depositor
Assets
-------------------------------------------------------------------------------
Item 7: Significant Enhancement Depositor
Provider Information
-------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for disclosure
(information required to be disclosed items on Form 8-K to the extent of
on Form 8-K that was not properly such items
disclosed)
-------------------------------------------------------------------------------
Item 9: Exhibits Paying Agent
Depositor
-------------------------------------------------------------------------------
EXHIBIT Y
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
-------------------------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure
(Information required to be reported items on Form 8-K to the extent of
on Form 8-K during the 4th quarter of such items
the year covered by the Form 10-K that
was not properly reported)
-------------------------------------------------------------------------------
Item 15: Exhibits, Financial Paying Agent
Statement Schedules Depositor
-------------------------------------------------------------------------------
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1117 of Servicing Agreement (as to
Regulation AB themselves), (ii) the Trustee, the
Paying Agent, the Master Servicers
and the Special Servicer as to the
Trust (in the case of the Master
Servicers and Special Servicer, to be
reported by the party controlling
such litigation pursuant to
Section 3.33), (iii) the Depositor as
to the sponsor, any 1110(b)
originator and any 1100(d)(1) party
-------------------------------------------------------------------------------
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1119 of Servicing Agreement as to themselves
Regulation AB (to the extent material to
Certificateholders and only as to
affiliations under Item 1119(a) with
the Trustee, Special Servicer or a
sub-servicer meeting any of the
descriptions in Item 1108(a)(3)),
(ii) the Depositor as to the sponsor,
originator, significant obligor,
enhancement or support provider
-------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Item 1112(b) of
Regulation AB
-------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Items 1114(b)(2) and Trustee
1115(b) of Regulation AB
-------------------------------------------------------------------------------
EXHIBIT Z
FORM 8-K DISCLOSURE INFORMATION
-------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-------------------------------------------------------------------------------
Item 1.01: Entry into a Material All parties (only as to agreements
Definitive Agreement such entity is a party to or entered
into on behalf of the Trust Fund)
-------------------------------------------------------------------------------
Item 1.02: Termination of a Material All parties (only as to agreements
Definitive Agreement such entity is a party to or entered
into on behalf of the Trust Fund)
-------------------------------------------------------------------------------
Item 1.03: Bankruptcy or Receivership Depositor
-------------------------------------------------------------------------------
Item 2.04: Triggering Events that Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
-------------------------------------------------------------------------------
Item 3.03: Material Modification to Paying Agent
Rights of Security Holders
-------------------------------------------------------------------------------
Item 5.03: Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
-------------------------------------------------------------------------------
Item 6.01: ABS Informational and Depositor
Computational Material
-------------------------------------------------------------------------------
Item 6.02: Change of Master Servicer, Master Servicers
Special Servicer, Paying Agent or Special Servicer
Trustee Paying Agent
Trustee
Depositor
-------------------------------------------------------------------------------
Item 6.03: Change in Credit Depositor
Enhancement or External Support Trustee
-------------------------------------------------------------------------------
Item 6.04: Failure to Make a Required Paying Agent
Distribution
-------------------------------------------------------------------------------
Item 6.05: Securities Act Updating Depositor
Disclosure
-------------------------------------------------------------------------------
Item 7.01: Regulation FD Disclosure Depositor
-------------------------------------------------------------------------------
Item 8.01 Depositor
-------------------------------------------------------------------------------
Item 9.01 Depositor
-------------------------------------------------------------------------------
EXHIBIT AA
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO (312) 904-2084 AND VIA E-MAIL TO edgar@abnamro.com AND VIA
OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services--J.P. Morgan Chase Commercial
Mortgage Securities Trust 2006-LDP7, Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7--SEC REPORT PROCESSING
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, New York, New York 10017
Attention: Dennis Schuh and Bianca Russo
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing
Agreement, dated as of June 1, 2006, by and among J.P. Morgan Chase Commercial
Mortgage Securities Corp., as depositor, Capmark Finance Inc. and Wachovia Bank,
National Association, as master servicers, LNR Partners, Inc., as special
servicer, Wells Fargo Bank, N.A., as trustee, and LaSalle Bank National
Association, as paying agent, the undersigned, as [ ], hereby notifies you that
certain events have come to our attention that [will] [may] need to be disclosed
on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[ ], phone number: [ ]; e-mail address: [ ].
[NAME OF PARTY],
as [role]
By: ___________________________________
Name:
Title:
EXHIBIT BB
SERVICING AND SUBSERVICING AGREEMENTS
Certain of the Mortgage Loans are subject to subservicing agreements as
set forth below.
-------------------------------------------------------------------------------
Property Name Subservicer Name
-------------------------------------------------------------------------------
Five Points West Shopping Center Laureate Capital
-------------------------------------------------------------------------------
Hampton Inn & Suites - Pineville Laureate Capital
-------------------------------------------------------------------------------
Country Club Corner LJ Melody & Company
-------------------------------------------------------------------------------
Riverside Building Northmarq Capital
-------------------------------------------------------------------------------
Olympia Village Apartments Collateral Mortgage Capital, LLC
-------------------------------------------------------------------------------
380 N. Old Woodward Bldg Bernard
-------------------------------------------------------------------------------
Towne Pointe Capstone Realty
-------------------------------------------------------------------------------
Nolan Ridge Apartments Cohen Financial
-------------------------------------------------------------------------------
Wendover Square @ James Landing Columbia National
-------------------------------------------------------------------------------
Hampton Inn - Austin Round Rock Columbia National
-------------------------------------------------------------------------------
Suburban Extended Stay - Kennesaw Financial Federal
-------------------------------------------------------------------------------
Cypresswood Apartments Financial Federal
-------------------------------------------------------------------------------
Beauregards Village Apartments Financial Federal
-------------------------------------------------------------------------------
Casa Grande & Southwick Apartments Financial Federal
-------------------------------------------------------------------------------
Hillside Medical Office Financial Federal
-------------------------------------------------------------------------------
Hampton Inn - Pearland Laureate Capital
-------------------------------------------------------------------------------
Center Point Business Park LJ Melody
-------------------------------------------------------------------------------
411 East Wisconsin LJ Melody
-------------------------------------------------------------------------------
Powers Ferry Landing East LJ Melody
-------------------------------------------------------------------------------
1333 Main Street LJ Melody
-------------------------------------------------------------------------------
Caribbean Village LJ Melody
-------------------------------------------------------------------------------
Lovejoy Commons LJ Melody
-------------------------------------------------------------------------------
Napa Retail Center LJ Melody
-------------------------------------------------------------------------------
Colony Place Northmarq Captial
-------------------------------------------------------------------------------
Cedar Creek Mall Pinnacle Financial Group
-------------------------------------------------------------------------------
Lake Lawrence Shopping Center Pinnacle Financial Group
-------------------------------------------------------------------------------
The Gardens on El Paseo Draper and Kramer Inc.
-------------------------------------------------------------------------------
Dollar General Portfolio GEMSA
-------------------------------------------------------------------------------
Pilot Knob Laureate Capital
-------------------------------------------------------------------------------
Deerfield Commons Red Capital
-------------------------------------------------------------------------------
EXHIBIT CC
SWAP CONTRACT
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of June 29, 2006
-------------
J.P. MORGAN CHASE COMMERCIAL
JPMORGAN CHASE BANK, N.A. and MORTGAGE SECURITIES TRUST 2006-LDP7
--------------------------------------------------------------------------------
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
o-f the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in lull
force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or an Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-Defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party. If that amount is
a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting
Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it
is a negative number, X will pay the absolute value of that amount to
Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire Agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the ease of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except so as to avoid duplication, if Section 6(e)(i)(l) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with a respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such determination as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) its relation to any payment, from or through which such
payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either ease) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each ease
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
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.
J.P. MORGAN CHASE COMMERCIAL MORTGAGE
JPMORGAN CHASE BANK, N.A. SECURITIES TRUST 2006-LDP7
---------------------------------- ---------------------------------------
(Name of Party) (Name of Party)
By: Wells Fargo Bank, N.A., not in its
individual capacity, but solely as
Trustee
By: /s/ Andrew B. Taylor By: /s/ Deborah Daniels
------------------------------- ------------------------------------
Name: Andrew B. Taylor Name: Deborah Daniels
Title: Vice President Title: Vice President
Date: June 29, 2006 Date: June 29, 2006
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of June 29, 2006
between JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL MORTGAGE
SECURITIES TRUST 2006-LDP7
("Party A") ("Party B")
PART 1: Termination Provisions
(a) (i) "Trust Agreement" means the Pooling and Servicing Agreement dated as
of June 1, 2006, among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as depositor, Wachovia Bank, National Association, as master
servicer No. 1, Capmark Finance Inc., as master servicer No. 2, LNR
Partners, Inc., as special servicer, Wells Fargo Bank, N.A., as trustee
and LaSalle Bank National Association, as paying agent, as amended,
modified, supplemented, restated or replaced from time to time.
(ii) "Class A-3FL Certificates" means the Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP7, Class A-3FL, issued by Party B under the
Trust Agreement.
(b) "Specified Entity" means, in relation to Party A for the purpose of:-
Section 5(a)(v) (Default under Specified Transaction), none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none;
in relation to Party B for the purpose of:
Section 5(a)(v) (Default under Specified Transaction) none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none.
(c) "Specified Transaction" will have the meaning specified in Section 14.
(d) The "Breach of Agreement" provisions of Section 5(a)(ii), the
"Misrepresentation" provisions of Section 5(a)(iv), and the "Default under
Specified Transactions" provisions of Section 5(a)(v) will not apply to
Party B. The "Cross Default" provisions of Section 5(a)(vi) will not apply
to Party A or Party B.
(e) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A
will not apply to Party B.
(f) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
(g) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(iii) Both Party A and Party B agree that any amounts payable by Party B
to Party A under Section 6(e), if any, in connection with any Event of
Default or Termination Event will be payable only from collections on the
Trust Estate (as defined below), and only from funds, if any, remaining in
the Floating Rate Account (as defined in the Trust Agreement) after all
other amounts have been paid under the Class A-3FL Certificates (including
all principal amounts outstanding) under the Trust Agreement.
(h) "Termination Currency" means United States Dollars.
(i) Additional Termination Events. It shall be an Additional Termination
Event:
(i) if Party B fails to comply with Part 1(j) of this Schedule, in which
event Party B shall be the sole Affected Party and all Transactions shall
be Affected Transactions; or
(ii) if Party A fails to satisfy any of the requirements of Part 5(m),
within the applicable time periods set forth therein, in which event Party
A shall be the sole Affected Party and all Transactions shall be Affected
Transactions.
(j) Amendments. Party B shall deliver to Party A a copy of any proposed
amendment to the Trust Agreement, and any amendment to the Trust Agreement
that could reasonably materially and adversely affect Party A shall be
subject to Party A's prior consent.
(k) Downgrade of Party A. If a Ratings Event (as defined below) shall occur
and be continuing with respect to Party A, then Party A shall, within 5
Local Business Days of such Ratings Event, (A) give notice to Party B of
the occurrence of such Ratings Event, and (B) at Party A's option and sole
expense, (x) transfer Party A's rights and obligations under this
Agreement and all Confirmations related hereto to another party (such
party whose long term debt is being rated at least "A1" (and not on watch
for possible downgrade) by Moody's (as defined below) or rated at least
"A+" by Fitch and S&P (as defined below)), subject to Rating Agency
confirmation, and at the cost of Party A, or (y) post Eligible Collateral
on a mark-to-market basis to secure Party B's exposure, if any, to Party
A, and such Eligible Collateral shall be provided in accordance with an
ISDA Credit Support Annex to be entered into between Party A and Party B
in the form attached hereto as Exhibit A, which will be attached hereto
and made a part hereof within 10 Local Business Days of Party A's election
to post Eligible Collateral. The Eligible Collateral to be posted and the
Credit Support Annex to be executed and delivered shall be subject to
Rating Agency confirmation. Party A's obligations to find an eligible
transferee or to post Eligible Collateral under such Credit Support Annex
shall remain in effect only for so long as a Ratings Event is continuing
with respect to Party A. For the purpose of this Part 1(k), a "Ratings
Event" shall occur with respect to Party A if the long-term senior
unsecured deposit ratings of Party A cease to be at least "A3" by Moody's
Investors Service, Inc., or any successor thereto ("Moody's"), at least
"A-" by Fitch, Inc., or any successor thereto ("Fitch") or at least "A-"
by Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., or any successor thereto ("S&P"), to the extent such
obligations are rated by Moody's, Fitch or S&P.
The failure by Party A to either post Eligible Collateral or transfer its
rights and obligations to an eligible transferee in accordance herewith
shall constitute an Additional Termination Event for which Party A shall
be the sole Affected Party.
(l) Failure to Pay or Deliver. Section 5(a)(i) is hereby deleted in its
entirety and replaced with the following:
"Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i)
or 2(e) required to be made by it."
PART 2: Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A 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 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (x) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (y) 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 (z) the satisfaction of the agreement of
the other party contained in Section 4(d) of this Agreement, provided that
it shall not be a breach of this representation where reliance is placed
on clause (y) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following representations
specified below, if any:- none
PART 3: Agreement to Deliver Documents
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver Date by which to be
document Form/Document/Certificate delivered
--------------------------------------------------------------------------------
Party A and Party B Any form, document or Upon request
certificate as may be
requested pursuant to
Section 4(a)(iii) of
this Agreement.
(b) Other documents to be delivered are:-
Covered by
Party required to Date by which Section 3(d)
deliver document Form/Document/Certificate to be delivered Representation
--------------------------------------------------------------------------------
Party B Statements to As soon as Yes
Certificateholders of Party B available.
Party B Certified copies of all Upon execution Yes
corporate authorizations and and delivery
any other documents with of this
respect to the execution, Agreement
delivery and performance of
this Agreement and the Trust
Agreement
Party A and Certificate of authority and Upon execution Yes
Party B specimen signatures of and delivery
individuals executing this of this
Agreement, and any Agreement and
Confirmations thereafter
upon request
of the other
party
PART 4: Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of this Agreement:-
Address for notice or communications to Party A:
JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Address for notice or communications to Party B:
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2006-LDP7 c/o Wells
Fargo Bank, N.A. 0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS), X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Series 2006-LDP7
Telecopy No.: 000-000-0000
With a copy to:
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp. 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10 of this Agreement:-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party B.
(f) Credit Support Document. Details of any Credit Support Document:-
Party B agrees that only the amounts with respect to the Class A-3FL
Certificates on deposit in the Floating Rate Account (as such terms are
defined in the Trust Agreement) held by the Paying Agent under the Trust
Agreement (such amounts, the "Trust Estate") shall constitute security for
the obligations of Party B to Party A under this Agreement.
Party A agrees that any ISDA Credit Support Annex entered into between
Party A and Party B pursuant to Part 1(k) hereof shall be a Credit Support
Document for purposes of this Agreement.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
its conflict of laws doctrine, other than Section 5-1401 of the General
Obligations Law).
(i) Netting of Payments. All amounts payable on the same date, in the same
currency and in respect of the same Transaction shall be netted in
accordance with Section 2(c) of this Agreement. The election contained in
the last paragraph of Section 2(c) of this Agreement shall not apply for
the purposes of this Agreement.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
PART 5: Other Provisions
(a) RESERVED.
(b) Delivery of Confirmations. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation via facsimile
transmission. Party B agrees to respond to such Confirmation within three
(3) Local Business Days, either confirming agreement thereto or requesting
a correction of any error(s) contained therein. Failure by Party A to send
a Confirmation or of Party B to respond within such period shall not
affect the validity or enforceability of such Transaction. Absent manifest
error, there shall be a presumption that the terms contained in such
Confirmation are the terms of the Transaction.
(c) Recording of Conversations. Each party to this Agreement acknowledges and
agrees to the tape recording of conversations between trading and
marketing personnel of the parties to this Agreement whether by one or
other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to the
Agreement.
(d) Furnishing Specified Information. Section 4(a)(iii) is hereby amended by
inserting "promptly upon the earlier of (i)" in lieu of the word "upon" at
the beginning thereof and inserting "or (ii) such party learning that the
form or document is required" before the word "any" on the first line
thereof.
(e) Notice by Facsimile Transmission. Section 12(a) is hereby amended by
inserting the words "2(b)," between the word "Section" and the number "5"
and inserting the words "or 13(c)" between the number "6" and the word
"may" in the second line thereof.
(f) Section 3(a) of this Agreement is amended by (i) deleting the word "and"
at the end of clause (iv); (ii) deleting the period at the end of clause
(v) and inserting therein "; and "; and (iii) by inserting the following
additional representation:
"(vi) Eligible Contract Participant. Each party represents to the other
party (which representation will be deemed to be repeated by each
party on each date on which a Transaction is entered into) that it
is an "eligible contract participant" as defined in Section 1a(12)
of the U.S. Commodity Exchange Act, 7 U.S.C. Section 1a(12)."
(g) Section 3 is revised so as to add the following Section (g) at the end
thereof:
"(g) Relationship Between Parties. Each party represents to the other
party and 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):-
(i) Non-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 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. Further, such
party has not received from the other party any assurance or
guarantee as to the expected results of that Transaction.
(ii) 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.
(iii) Status of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of that Transaction."
(h) Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(i) 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-3FL Certificates
issued by Party B pursuant to the Trust Agreement 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.
(j) Limited Recourse. The obligations of Party B under this Agreement are
limited recourse obligations of Party B, payable solely from amounts
remaining in the Trust Estate after payment in full of all amounts due to
the Class A-3FL Certificates, subject to and in accordance with the terms
of the Trust 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 Trust 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 Trust
Agreement shall be extinguished.
(k) Limitation of Liability. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by Xxxxx
Fargo Bank, N.A. ("Xxxxx Fargo"), not individually or personally but
solely as the trustee, in the exercise of the powers and authority
conferred and vested in it, (b) the representations, undertaking and
agreements herein made on the part of the Trust are made and intended not
as personal representations, undertakings and agreements by Xxxxx Fargo
but are made and intended for the purpose of binding only the Trust, (c)
nothing herein contained shall be construed as creating any liability on
Xxxxx Fargo, individually or personally (other than to act with the
standard of care provided under the Trust Agreement), to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties who are signatories to this
Agreement and by any person claiming by, through or under such parties and
(d) under no circumstances shall Xxxxx Fargo be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the
breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under this Agreement.
(l) Transfer. Section 7 of the Agreement is supplemented by the additional
requirement that any transfer or assignment by Party A of its obligations
under this Agreement (including any Confirmation), and any amendments to
this Agreement (including any Confirmation), shall be subject to Rating
Agency confirmation.
(m) Compliance with Regulation AB.
(i) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Securities Exchange Act of
1934, as amended (the "Exchange Act") with respect to the Certificates, in
the reasonable determination made in good faith of the Sponsors (as
defined in the Prospectus), the aggregate "significance percentage" (as
defined in Regulation AB ("Regulation AB") under the Securities Act of
1933, as amended, and the Exchange Act) of all derivative instruments
(contemplated by Item 1115 of Regulation AB) provided by Party A and any
of its affiliates to Party B is at least 10% but less than 20%, Party A
shall, subject to subparagraph (iii) below, within five (5) Business Days
following request therefor by Party B provide the financial information
required under Item 1115(b)(1) of Regulation AB for Party A (and for the
group of affiliated entities, if applicable) (the "Item 1115(b)(1)
Information"). Any such Item 1115(b)(1) Information shall be in a form
suitable for conversion to the format required for filing by the Depositor
with the Securities and Exchange Commission via the Electronic Data
Gathering and Retrieval System (XXXXX).
(ii) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Exchange Act with respect to
the Certificates, in the reasonable determination made in good faith of
the Sponsors, the aggregate "significance percentage" of all derivative
instruments (contemplated by Item 1115 of Regulation AB) provided by Party
A and any of its affiliates to Party B is at least 20%, Party A shall,
subject to subparagraph (iii) below, within five (5) Business Days
following request therefor by Party B provide the financial information
required under Item 1115(b)(2) of Regulation AB for Party A (and for the
group of affiliated entities, if applicable) (the "Item 1115(b)(2)
Information", and together with the Item 1115(b)(1) Information, the
"Additional Information"). Any such Item 1115(b)(2) Information shall be
in a form suitable for conversion to the format required for filing by the
Depositor with the Securities and Exchange Commission via the Electronic
Data Gathering and Retrieval System (XXXXX). In addition, any such Item
1115(b)(2) Information shall be accompanied by any necessary auditor's
consents.
(iii) If Party A is unable to provide any such Additional Information if,
as and when required, Party A shall, at its option, within ten (10)
Business Days following request therefor, (1) promptly post collateral
satisfactory to the Sponsors in an amount which is reasonably determined
in good faith to be sufficient to reduce the aggregate "significance
percentage" to (x) in the case of subparagraph (i) above, below 10%, and
(y) in the case of subparagraph (ii) above, provided Party A is able to
meet the requirements of subparagraph (i) above, below 20%, in each case
pursuant to a Credit Support Annex or similar agreement reasonably
satisfactory to the Sponsor, or (2) at the sole expense of Party A,
without any expense or liability to Party B, transfer or assign its
obligations under this Agreement to a substitute counterparty reasonably
acceptable to Party B that (x) is able to provide such Additional
Information if, as and when required, and (y) enters into an agreement
similar in form to this Agreement pursuant to which such substitute
counterparty agrees to provide the Additional Information if, as and when
required.
(iv) Party A's obligation to provide any such Additional Information shall
terminate beginning in any such year in which Party B's obligation to file
periodic reports under the Exchange Act has been terminated, and shall
continue to be terminated unless Party B notifies Party A that Party B's
obligations to file periodic reports under the Exchange Act has resumed.
Accepted and agreed:
JPMORGAN CHASE BANK, N.A. J.P. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES TRUST 2006-LDP7
By: /s/ Xxxxxx X. Xxxxxx By:
--------------------------------- Xxxxx Fargo Bank, N.A., not in its
Name: Xxxxxx X. Xxxxxx individual capacity, but solely as
Title: Vice President Trustee
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
PARAGRAPH 13 TO
CREDIT SUPPORT ANNEX
to the Schedule to the
Master Agreement
dated as of June 29, 2006
between
JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Xxxxx Commercial
("Xxxxxx") Mortgage Securities Trust
2006-LDP7
("Counterparty")
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes no additional obligations with respect to either
party.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a).
(B) "Return Amount" has the meaning specified in Paragraph 3(b).
(C) "Credit Support Amount" shall not have the meaning specified
in Paragraph 3(b) and, instead, will have the following
meaning:
"Credit Support Amount" means, for any Valuation Date, (i) the
Secured Party's Modified Exposure for that Valuation Date minus (ii)
the Pledgor's Threshold; provided, however, that the Credit Support
Amount will be deemed to be zero whenever the calculation of Credit
Support Amount yields a number less than zero.
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral":
Xxxxxx "Valuation
Percentage"
-------------------------------------------------------------------------------------------------
(A) USD Cash X 100%
(B) Negotiable debt obligations issued by the U.S. Treasury X 98.8%
Department having a remaining maturity of one year or less
from the Valuation Date
(C) Negotiable debt obligations issued by the U.S. Treasury X 92%
Department having a remaining maturity of more than one year
but less than ten years from the Valuation Date
(D) Negotiable debt obligations issued by the U.S. Treasury X 84%
Department having a remaining maturity of ten years or more
from the Valuation Date
(E) Agency Securities having a remaining maturity of one year or X 98.4%
less from the Valuation Date
(F) Agency Securities having a remaining maturity of more than X 90%
one year but less than ten years from the Valuation Date
(G) Agency Securities having a remaining maturity of ten years X 82%
or more from the Valuation Date
(H) USD denominated Commercial Paper rated A1/P1 by S&P and X 97%
Moody's respectively, that (a) settles within DTC, (b) is
not issued by Xxxxxx or any of its Affiliates and (c) has a
remaining maturity of 30 days or less from the Valuation Date
For purposes of the foregoing:
(1) "Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Association or the Federal Home Loan Mortgage Corporation, but
excluding (i) interest only and principal only securities and (ii)
Collateralized Mortgage Obligations, Real Estate Mortgage Investment
Conduits and similar derivative securities.
(2) "DTC" shall mean The Depository Trust & Clearing Corporation, or
its successor.
(3) "Moody's" shall mean Xxxxx'x Investors Service, Inc., or its
successor.
(4) "S&P" shall mean Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., or its successor.
(5) Eligible Collateral of the type described in Paragraph
13(b)(ii)(H) may never constitute more than 20% of the total Value
of Posted Collateral.
(6) With respect to Posted Collateral consisting of Eligible
Collateral of the type described in Paragraph 13(b)(ii)(H), the
aggregate Value of such Posted Collateral issued by the same issuer
may never be greater than 33% of the aggregate Value of all Posted
Collateral consisting of Eligible Collateral of the type described
in Paragraph 13(b)(ii)(H).
(7) "Fitch" shall mean Fitch Ratings, Inc., or its successor.
(iii) Other Eligible Support. There shall be no "Other Eligible Support"
for purposes of this Annex, unless agreed in writing between the
parties.
(iv) Thresholds.
(D) "Independent Amount" means zero.
(E) "Threshold" shall not apply with respect to the Counterparty
and, with respect to Xxxxxx, shall mean the amounts determined
on the basis of the lower of the Credit Ratings set forth in
the following table, provided, however, that if (i) Xxxxxx has
no Credit Rating, or (ii) an Event of Default has occurred and
is continuing with respect to Xxxxxx, Morgan's Threshold shall
be U.S.$0:
CREDIT RATING THRESHOLD
(S&P /Moody's/Fitch) Xxxxxx
--------------------------------------------------------
S&P: A- or above Infinity
Moody's: A3 or above
Fitch: A- or above
--------------------------------------------------------
S&P: Below A- US$0
Moody's: Below A3
Fitch: Below A-
--------------------------------------------------------
As used herein:
"Credit Rating" means, with respect to (a) S&P, the rating assigned
by S&P to the short-term and long-term senior unsecured deposits of
Xxxxxx, (b) Moody's, the rating assigned by Moody's to the
short-term and long-term senior unsecured deposits of Xxxxxx, or (c)
Fitch, the rating assigned by Fitch to the short-term and long-term
senior unsecured deposits of Xxxxxx, as applicable.
(F) "Minimum Transfer Amount", with respect to a party on any
Valuation Date, means U.S. $250,000.
(G) Rounding. The Delivery Amount and the Return Amount will be
rounded up and down to the nearest integral multiple of
$100,000, respectively.
(c) Valuation and Timing.
(i) "Valuation Agent" means Xxxxxx.
(ii) "Valuation Date" means weekly on the last Local Business Day of each
week or more frequently if agreed in writing by the parties.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Valuation Date or date of calculation, as
applicable.
(iv) "Notification Time" means 12:00 p.m., New York time, on a Local
Business Day.
(d) Conditions Precedent. With respect to Xxxxxx, any Additional Termination
Event (if Xxxxxx is the Affected Party with respect to such Termination
Event) will be a "Specified Condition".
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice is given that gives
rise to a dispute under Paragraph 5.
(ii) Value. For the purposes of Paragraphs 5(i)(C) and 5(ii), the Value of
Posted Credit Support other than Cash will be calculated as follows:
(A) with respect to any Eligible Collateral except Cash, the sum
of (I) (x) the mean of the high bid and low asked prices
quoted on such date by any principal market maker for such
Eligible Collateral chosen by the Disputing Party, or (y) if
no quotations are available from a principal market maker for
such date, the mean of such high bid and low asked prices as
of the first day prior to such date on which such quotations
were available, plus (II) the accrued interest on such
Eligible Collateral (except to the extent Transferred to a
party pursuant to any applicable provision of this Agreement
or included in the applicable price referred to in (I) of this
clause (A)) as of such date; multiplied by the applicable
Valuation Percentage.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Counterparty and
its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided that the following conditions applicable to it
are satisfied:
(1) Counterparty is not a Defaulting Party and
(2) Posted Collateral may be held only in the following
jurisdictions: New York State.
Initially, the Custodian for Counterparty is: None
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c)(i) will
not apply to Counterparty but the provisions of Paragraph 6(c)(ii) will
apply to the Counterparty.
(h) Distributions and Interest Amount.
(i) Interest Rate. "Interest Rate" for any day means, the Federal Funds
Overnight Rate. For the purposes hereof, "Federal Funds Overnight Rate"
means, for any day, an interest rate per annum equal to the rate published
as the Federal Funds Effective Rate that appears on Telerate Page 118 for
such day.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount will
be made monthly on the second Local Business Day of each calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). Not Applicable.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable
(k) Demands and Notices.
All demands, specifications and notices under this Annex will be made pursuant
to the Notices Section of this Agreement, unless otherwise specified here:
Counterparty:
Xxxxxx: JPMorgan Chase Bank, National Association
Collateral Middle Office Americas 3/OPS2
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Email: xxxxxxxxxx_xxxxxxxx@xxxxxxxx.xxx
(l) Other Provisions:
(i) Modification to Paragraph 1: The following subparagraph (b) is
substituted for subparagraph (b) of this Annex:
(b) Secured Party and Pledgor. All references in this Annex to the
"Secured Party" will be to Counterparty and all corresponding references
to the "Pledgor" will be to Xxxxxx.
(ii) Modification to Paragraph 2: The following Paragraph 2 is substituted
for Paragraph 2 of this Annex:
Paragraph 2. Security Interest. The Pledgor hereby pledges to the
Secured Party, as security for its Obligations, and grants to the
Secured Party a first priority continuing security interest in, lien
on and right of Set-Off against all Posted Collateral Transferred to
or received by the Secured Party hereunder. Upon the Transfer by the
Secured Party to the Pledgor of Posted Collateral, the security
interest and lien granted hereunder on that Posted Collateral will
be released immediately and, to the extent possible, without any
further action by either party.
(iii) Modification to Paragraph 9: The following first clause of Paragraph
9 is substituted for the first clause of Paragraph 9 of this Annex:
Paragraph 9. Representations. The Pledgor represents to the Secured Party
(which representations will be deemed to be repeated as of each date on
which it Transfers Eligible Collateral) that:
(iv) Modifications to Paragraph 12: The following definitions of "Pledgor"
and "Secured Party" are substituted for the definitions of those terms
contained in Paragraph 12 of this Annex:
"Pledgor" means Xxxxxx, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii)
has Transferred Eligible Credit Support under Paragraph 3(a).
"Secured Party" means Counterparty, when that party (i) makes a demand for
or is entitled to receive Eligible Credit Support under Paragraph 3(a) or
(ii) holds or is deemed to hold Posted Credit Support.
(v) Addition to Paragraph 12: The following definitions of "Modified
Exposure" shall be added immediately after the definition of the term
"Minimum Transfer Amount" and immediately prior to the definition of the
term "Notification Time" in Paragraph 12 of this Annex:
"Modified Exposure" means, for any Valuation Date, an amount equal to the
sum of (i) the greater of USD 0 and the Secured Party's Exposure for that
Valuation Date and (ii) the sum of the Volatility Buffers determined by
the Valuation Agent with respect to each Transaction subject to the
Agreement. As used herein:
"Volatility Buffer" means, with respect to a Transaction, an amount equal
to the product of (a) the Factor applicable to the Transaction and (b) the
Notional Amount of the Transaction.
"Factor" means, with respect to a Transaction, a percentage dependent on
Xxxxxx'x Counterparty Rating by S&P or Xxxxx'x, as applicable, and the
original maturity of the Transaction and determined by the Valuation Agent
by reference to the following table:
Counterparty Maturities up Maturities up Maturities
Rating to 5 years (%) to 10 years up to 30
(S&P/Xxxxx'x) (%) years (%)
--------------------------------------------------------------
A-2/P-2 3.25 4.00 4.75
A-3/P-3 4.00 5.00 6.25
BB+ or lower/Ba1 4.50 6.75 7.50
or lower
Modification to Paragraph 12: Clause "(B)" of the definition of "Value"
will be substituted to read in its entirety as follows:
"(B) a security, the bid price obtained by the Valuation Agent from one of
the Pricing Sources multiplied by the applicable Valuation Percentage, if
any;"
(vi) Addition to Paragraph 12: The following definition of "Pricing
Sources" shall be added immediately after the definition of the term
"Posted Credit Support" and immediately prior to the definition of the
term "Recalculation Date" in Paragraph 12 of this Annex:
"Pricing Sources" means the sources of financial information commonly
known as Bloomberg, Bridge Information Services, Data Resources Inc.,
Interactive Data Services, International Securities Market Association,
Xxxxxxx Xxxxx Securities Pricing Service, Xxxxxx Data Corporation,
Reuters, Wood Gundy, Trepp Pricing, XX Xxxxx, S&P and Telerate.
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
X.X. XXXXXX XXXXX COMMERCIAL
MORTGAGE SECURITIES TRUST 2006-LDP7
By: Xxxxx Fargo Bank, N.A., not in its individual
capacity, but solely as Trustee
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
CONFIRMATION FOR U.S. DOLLAR INTEREST RATE SWAP
TRANSACTION UNDER 1992 MASTER AGREEMENT
Date: June 29, 2006 Our ref: 99500684
To: X.X. Xxxxxx Xxxxx Commercial From: JPMorgan Chase Bank, N.A.
Mortgage Securities Trust 000 Xxxx Xxxxxx
2006-LDP7 6th Floor
c/o Wells Fargo Bank, N.A. Xxx Xxxx, Xxx Xxxx 00000
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Services Contact: Xxxxxx Xxxxxx
(CMBS), X.X. Xxxxxx Xxxxx
Commercial Mortgage
Securities Corp., Series
2006-LDP7
Fax No: (000) 000-0000 Fax No: (000) 000-0000
Tel No: (000) 000-0000
Dear Sir/Madam,
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2006-LDP7 and JPMorgan Chase Bank, N.A. (each a
"party" and together "the parties") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the ISDA Master Agreement specified in paragraph 1 below (the
"Agreement").
The definitions and provisions contained in the 2000 ISDA
Definitions (as published by the International Swaps and Derivatives
Association, Inc., the "Definitions") are incorporated into this Confirmation.
In the event of any inconsistency between the Definitions and this Confirmation,
this Confirmation will govern. Capitalized terms used herein and not otherwise
defined have the meanings set forth in the Definitions or the Trust Agreement
referred to below under "Credit Support Documents."
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement (including the Schedule thereto) dated as of June 29,
2006, as amended and supplemented from time to time (the "Agreement"), between
the parties. All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
In this Confirmation "Party A" means JPMorgan Chase Bank, N.A. and
"Party B" means X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2006-LDP7
(the trust established pursuant to the Trust Agreement, as defined herein).
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Notional Amount: For each Calculation Period, the
Certificate Balance (as defined in the
Trust Agreement) of the Commercial
Mortgage Pass-Through Certificates,
Series 2006-LDP7, Class A-3FL Regular
Interest, issued by Party B under the
Trust Agreement, as of the close of
business on the Distribution Date (as
defined in the Trust Agreement) occurring
in such Calculation Period, except that
the Notional Amount for the Initial
Calculation Period shall be the Original
Certificate Balance (as defined in the
Trust Agreement) of the Commercial
Mortgage Pass-Through Certificates,
Series 2006-LDP7, Class A-3FL Regular
Interest. For the avoidance of doubt, on
the Effective Date, the Notional Amount
is equal to $100,000,000.
Trade Date: June 23, 2006
Effective Date: June 29, 2006
Termination Date: The earlier of: (a) the Rated Final
Distribution Date (as defined in the
Trust Agreement) in April of 2045; or (b)
the date when the Notional Amount
hereunder has been reduced to zero, in
each case subject to adjustment in
accordance with the Following Business
Day Convention.
Initial Accrual
Interest Payment
by Party A to $450,722.00, to be paid on the Effective
Party B: Date.
Initial Up-front
Payment by Party $1,140,630.00, to be paid on the Effective
B to Party A: Date.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer The related Distribution Date, beginning on
Payment Dates: July 17, 2006 and ending on the
Termination Date.
Fixed Rate: 5.7950% per annum
Fixed Rate Day 30/360 (without regard to the date of the
Count Fraction: first day or last day of the Calculation
Period).
Initial Fixed Rate From and including June 1, 2006, through
Calculation and including June 30, 2006.
Period:
Fixed Amount: For each Payment Date in respect of a
Calculation Period, the lesser of: (1)
the product of (a) the Fixed Rate, (b)
the Fixed Rate Day Count Fraction and (c)
the Notional Amount for such Calculation
Period (the "Regular Fixed Amount"); or
(2) the amount of funds available for
such payment under the Trust Agreement
(the "Available Fixed Amount").
Fixed Rate Payer The first day of each calendar month (with
Period End Dates: no adjustments).
Fixed Rate Payer For each Payment Date, the period from and
Delayed Payment: including the immediately preceding
Period End Date to, but excluding, such
Payment Date.
Fixed Rate For each Payment Date, the calendar month
Calculation preceding such Payment Date during the
Period: Term of this Swap Transaction.
Additional Fixed For any Payment Date, the amount of any
Amount: Yield Maintenance Charges (as defined in
the Trust Agreement) paid in respect of the
Class A-3FL Regular Interest on the related
Distribution Date under the Trust Agreement.
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer The Business Day prior to the related
Payment Dates: Distribution Date, beginning on July 14,
2006 and ending on the Termination Date.
Floating Rate for LIBOR plus the Spread.
Initial
Calculation
Period:
Floating Rate LIBOR, as defined and calculated under the
Option: Trust Agreement; provided that for the
Initial Floating Rate Calculation Period,
the Floating Rate Option should be 5.350%.
Spread: 0.16%
Floating Rate Day Actual/360
Count Fraction:
Floating Rate For each Payment Date, the period from and
Calculation including the Distribution Date in the
Period: preceding calendar month (or the Closing
Date (as defined in the Trust Agreement), in
the case of the Initial Floating Rate
Calculation Period), to, but excluding, the
related Distribution Date, except that the
final Calculation Period will end on, but
exclude, the Termination Date.
Initial Floating From and including the Closing Date to, but
Rate Calculation excluding, July 17, 2006.
Period:
Floating Amount: For each Payment Date in respect of a
Calculation Period, the lesser of: (1) an
amount equal to the product of (a) the
Floating Rate, (b) the Floating Rate Day
Count Fraction and (c) the Notional
Amount for such Calculation Period (the
"Regular Floating Amount"); or (2) an
amount equal to (a) the Regular Floating
Amount minus (b) the excess of (i) the
Regular Fixed Amount for such Payment
Date over (ii) the Available Fixed Amount.
Business Days: As defined in the Trust Agreement.
Calculation Agent: Party B
Other: For the avoidance of doubt, for purposes of
Section 2(c) of the Agreement, any amounts
payable by the Floating Rate Payer on a
Floating Rate Payer Payment Date, and by the
Fixed Rate Payer on the related Fixed Rate
Payer Payment Date, shall be netted even though
such dates may be different, and the party with
the larger aggregate amount shall make the net
payment on the related Payment Date.
Recording of Conversations
Each party to this Transaction acknowledges and agrees to the tape
recording of conversations between the parties to this Transaction whether by
one or other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to the
Agreement and/or this Transaction.
Credit Support With respect to Party B, the Pooling and
Documents: Servicing Agreement, dated as of June 1,
2006, among X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., as depositor,
Wachovia Bank, National Association, as
master servicer No. 1, Capmark Finance
Inc., as master servicer No. 2, LNR
Partners, Inc., as special servicer,
Xxxxx Fargo Bank, N.A., as trustee and
LaSalle Bank National Association, as
paying agent, as amended, modified,
supplemented, restated or replaced from
time to time (the "Trust Agreement").
Account Details:
Account for Name: JPMorgan Chase Bank, N.A.
payments to City: New York
Party A: ABA: 000-000-000
Acct #: 000-00-000
Attn: Balance Guaranty
Account for Name: Xxxxx Fargo Bank, N.A., as Trustee
payments to
Party B:
ABA# 000-000-000
LaSalle Bank, N.A., Chicago
LaSalle/CHGO/CTR/BNF:/LASALLE TRUST
for further credit to Acct # 723844.1
Ref: XX Xxxxxx 2006-LDP7
6 Offices:
The Office of
Party A for this
Transaction is: New York, NY
The Office of
Party B for this
Transaction is: New York, NY
Please confirm that the foregoing correctly sets forth the terms and
conditions of our agreement by responding within three (3) Business
Days by returning via telecopier an executed copy of this
Confirmation to the attention of Xxxxxx Xxxxxx (fax no. (212)
834-6598).
Failure to respond within such period shall not affect the validity or
enforceability of this Transaction, and shall be deemed to be an affirmation of
the terms and conditions contained herein, absent manifest error.
JPMorgan Chase Bank, N.A. Accepted and confirmed as of the date
first written:
X.X. Xxxxxx Xxxxx Commercial Mortgage
By: /s/ Xxxxxx X. Xxxxxx Securities Trust 2006-LDP7
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President By: Xxxxx Fargo Bank, N.A., not in its
individual capacity, but solely as
Trustee
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE 1
Mortgage Loans Containing Additional Debt
Loan Number Property Name
----------------------- ------------------------------------------
2 One & Two Xxxxxxxxxx Xxxxx
0 Xxxxx Xxxxx Xxxxxx
0 XXX Hotel Portfolio
10 PennCom Plaza
14 Oklahoma City Portfolio
22 Acacia Park Apartments
52 Xxxxxxx PLC Building - Xxxxxxxx
000 Xxxxx Xxxxx
162 The Xxxxxxx Redevelopment
203 Towne Pointe
SCHEDULE 2
Mortgage Loans which Initially Pay Interest Only
Loan Number Property Name
---------------------- -----------------------------------------
1 Westfield Centro Portfolio
2 One & Two Prudential Plaza
3 Bella Terra Retail
4 0000 Xxxxxxxxxxxx Xxxxxx
6 Centre at Salisbury
7 Xxxxx - Xxxxxxxxxx Beach
8 Four Penn Center
9 The Gardens on Xx Xxxxx
00 XxxxXxx Xxxxx
11 411 East Wisconsin
13 Shoreview Corporate Center
15 Powers Ferry Landing East
16 Citation Club
18 San Xxxxxxxx
19 Xxxxxx - Xxxxx / Naperville
20 Home Depot Plaza
21 GC Sacramento Office Portfolio
00 Xxxxxx Xxxx Xxxxxxxxxx
00 Xxxxxx Xxxxx
00 Xxxxx Xxxxxx Xxxxxx
00 The Sagamore Hotel
26 Shoppes at Jupiter
27 Hotel Monaco
28 Motorola Building Campus
29 Inland - Colony Square
30 550, 650 and 000 Xxxxxxxxxxx Xxxx Offices
31 Desert Palm Apartments
32 Commerce Park
35 One Ontario Commercial
36 Cambridge Crossing
38 Kimco Columbia- Hickory Ridge
39 Residence Inn - San Diego
42 Courtyard by Marriott Miami (AVR)
43 Schiff Nutrition International
44 0000 Xxxx Xxxxxx & Vista Center
45 Coral Palms Apartments
47 Nilfisk Advance - MN
48 Autumn Ridge Apts
49 18 Street Atrium
50 Inland - Xxxxx Crossing
00 Xxxxx Xxxxxxxx- Xxxxxxxx Crossing
52 Xxxxxxx PLC Building - Xxxxxxxx
53 Kimco Columbia - Xxxxxx'x Village
54 ELS - Rambler's Rest Resort
55 Embassy Suites - Beachwood
56 Sephora Distribution Facility
57 Crowne Plaza - Xxxxx
58 Xxxxxx'x Landing
59 Dollar General Portfolio
60 Xxxxxxxxx Companies
62 Grass Valley Shopping Center
63 Cotton Mill Studios
64 Radisys Headquarters Building
65 Stop & Shop (Malden, MA)
68 Wallkill Town Center
69 Inland Olivet Church
70 One Xxxx Lakes-Landgem
75 Residence Inn - Highlands Ranch
76 Kimco Columbia- Harpers Choice
77 Xxxxxxxx Festival
00 Xxxxxx Xxxxxx
00 Xxxx & Xxxx (Xxxxxxxxxx, XX)
00 Xxxx Xxxxxxxx
00 Xxxx Xxxxxx Xxxxxxx Shopping Center
83 Lorton Station Medical Center
85 850 - 000 Xxxxxxxxxxx Xxxx
86 Hilton Garden Inn - Knoxville
87 231 Ship Canal Parkway
89 Cameron Creek Apartments
91 HQ Building
92 Foxborough Apartments
93 Xxxxxxx & Xxxxx
94 0000 Xxxxxxx Xxxxxx
95 ELS - Fiesta Grande I & II
97 Pepperwood Townhomes
98 Best Buy (MN)
99 Stop & Shop (Framingham, MA)
000 Xxxx Xxxxxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxxxxxx Xxxxxxx
000 Xxxxxx Xxxxxx Xxx - Xxxxxxxx Xxxxxxx
000 Xxxxx Xxxxx
000 XXX-Xxxxx Xxx
107 Desert Courtyards
000 Xxxxx Xxxxxx Xxxxxx
000 Xxxx & Xxxx (Xxxxxxx, XX)
000 Xxxxxxxxx Xxxxxxxxxx
000 Xxxxxxxx at Enfield Apartments
000 Xxxxxxxxx Xxxxxxxx
000 Xxxxxx - Sentry Office Building
119 ELS - Tropical Palms
000 Xxxxxxxxx XX
000 Xxxxxx Xxxxxx Plaza Retail
124 Camellia Tower Office Building
126 0000-00 Xxxxxx Xxxxxx
127 ELS - Venture In
000 Xxxxx Xxxxxxx Xxxxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxx
134 000 X. Xxx Xxxxxxxx Xxxx
000 Xxxxx Xxxxx Xxxx
139 Coeur d'Alene Center
143 Nilfisk Advance - AR
144 2001 Xxxxxxx Xxxxxx
000 Xxxxxxx Xxx Xxx Xxxxxxx (XXX)
146 Signature Center
148 000 X. X Xxxxxx
000 XXX Xxxxxxx Xxxxxxxx
000 Xxxxxxxx Xxxx Xxxxxxxx Xxxx
155 Xxxxxxxxxxxx Heights
000 Xxxx Xxxxx Xxxxxxxxxx
000 ELS - Capri MHC & RV
160 Lomas Santa Fe Office
000 Xxxxxxxx Xxxxxx at Xxxxx Landing
165 ELS - Inlet Oaks Village
167 000 Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx
000 Xxxxxxxxx Xxxxxxxxx
171 0000 X. Xxxxxxx Xxxxxx
174 Meadowbrook Professional Plaza
175 Albertsons Van Nuys Center
000 Xxxx Xxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxx Xxxxxxx
189 United Penn Plaza
190 00 X. Xxxxxx Xxxxxxx
192 Cypresswood Apartments
196 701 Highlander Office Building
197 Walgreens (Apple Valley)
198 Inland Eckerds - Hellertown
199 Inland Eckerds - Lebanon
202 Inland Eckerds - Punxsutawny
000 Xxxxxx Xxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxxxx RV Resort
206 Lake Lawrenceville Shopping Center
000 Xxxxxxxx Crossing
212 0000 Xxxxxxxxx Xxxxxxx
213 Plaza 18
223 Little Xxxxx Mobile Villa
227 ELS - Foothills West
230 Xxxxxxx Estates
231 ELS - Casita Verde
000 Xxxxxxxxxx Xxxxx
000 Xxxxxxxx Medical Xxxxxx
000 Xxxxxx Xxxxxxxx Xxxxx
000 Xxxxxxx Xxxxx - Xxxxxxxxxx
000 Walgreens (Kalamazoo, MI)
000 Xxxxxxxxx - Xxxx, XX
266 Pacifico Del Amo MHP
SCHEDULE 3
Assumption Fees on Certain Mortgage Loans
N/A
SCHEDULE 4
Class A-SB Planned Principal Balance Schedule
Date Balance ($)
-------------------------- --------------------
July 15, 2006 170,204,000.00
August 15, 2006 170,204,000.00
September 15, 2006 170,204,000.00
October 15, 2006 170,204,000.00
November 15, 2006 170,204,000.00
December 15, 2006 170,204,000.00
January 15, 2007 170,204,000.00
February 15, 2007 170,204,000.00
March 15, 2007 170,204,000.00
April 15, 2007 170,204,000.00
May 15, 2007 170,204,000.00
June 15, 2007 170,204,000.00
July 15, 2007 170,204,000.00
August 15, 2007 170,204,000.00
September 15, 2007 170,204,000.00
October 15, 2007 170,204,000.00
November 15, 2007 170,204,000.00
December 15, 2007 170,204,000.00
January 15, 2008 170,204,000.00
February 15, 2008 170,204,000.00
March 15, 2008 170,204,000.00
April 15, 2008 170,204,000.00
May 15, 2008 170,204,000.00
June 15, 2008 170,204,000.00
July 15, 2008 170,204,000.00
August 15, 2008 170,204,000.00
September 15, 2008 170,204,000.00
October 15, 2008 170,204,000.00
November 15, 2008 170,204,000.00
December 15, 2008 170,204,000.00
January 15, 2009 170,204,000.00
February 15, 2009 170,204,000.00
March 15, 2009 170,204,000.00
April 15, 2009 170,204,000.00
May 15, 2009 170,204,000.00
June 15, 2009 170,204,000.00
July 15, 2009 170,204,000.00
August 15, 2009 170,204,000.00
September 15, 2009 170,204,000.00
October 15, 2009 170,204,000.00
November 15, 2009 170,204,000.00
December 15, 2009 170,204,000.00
January 15, 2010 170,204,000.00
February 15, 2010 170,204,000.00
March 15, 2010 170,204,000.00
April 15, 2010 170,204,000.00
May 15, 2010 170,204,000.00
June 15, 2010 170,204,000.00
July 15, 2010 170,204,000.00
August 15, 2010 170,204,000.00
September 15, 2010 170,204,000.00
October 15, 2010 170,204,000.00
November 15, 2010 170,204,000.00
December 15, 2010 170,203,129.56
January 15, 2011 167,797,018.13
February 15, 2011 165,401,035.35
March 15, 2011 162,078,233.70
April 15, 2011 159,668,001.02
May 15, 2011 156,948,999.57
June 15, 2011 154,432,450.58
July 15, 2011 151,620,960.41
August 15, 2011 149,114,710.33
September 15, 2011 146,595,625.73
October 15, 2011 143,535,659.30
November 15, 2011 140,801,771.96
December 15, 2011 137,713,303.76
January 15, 2012 134,949,822.61
February 15, 2012 132,172,296.81
March 15, 2012 128,702,100.23
April 15, 2012 125,892,813.18
May 15, 2012 122,730,997.01
June 15, 2012 119,891,357.42
July 15, 2012 116,700,014.60
August 15, 2012 113,829,717.04
September 15, 2012 110,944,829.96
October 15, 2012 107,709,470.76
November 15, 2012 104,793,470.39
December 15, 2012 101,527,693.43
January 15, 2013 98,632,791.54
February 15, 2013 95,723,171.28
March 15, 2013 91,822,258.34
April 15, 2013 88,877,518.68
May 15, 2013 85,683,894.39
June 15, 2013 82,819,313.47
July 15, 2013 79,646,740.08
August 15, 2013 76,769,713.23
September 15, 2013 73,878,099.24
October 15, 2013 70,661,644.80
November 15, 2013 67,739,056.59
December 15, 2013 64,492,470.92
January 15, 2014 61,538,460.68
February 15, 2014 58,632,363.27
March 15, 2014 54,813,280.92
April 15, 2014 51,873,050.77
May 15, 2014 48,619,592.16
June 15, 2014 45,647,933.04
July 15, 2014 42,363,900.66
August 15, 2014 39,360,496.92
September 15, 2014 36,341,853.90
October 15, 2014 33,012,115.95
November 15, 2014 29,961,256.42
December 15, 2014 26,600,178.56
January 15, 2015 23,516,778.90
February 15, 2015 20,417,732.67
March 15, 2015 16,423,417.11
April 15, 2015 13,288,363.54
May 15, 2015 9,845,382.77
June 15, 2015 6,676,943.28
July 15, 2015 3,201,484.99
SCHEDULE 5
Mortgage Loans with Earnouts, Holdbacks or Letters of Credit
JPMCC 2006 LDP7
Earnout/Holdback Schedule
Cutoff Earn-out/Holdback/Letter-
Control # Originator Loan Name Balance of-Credit Amount
------------------------------------------------------------------------------------------------------------------------------------
2 GMACCM Bella Terra Retail $188,000,000 Earnout $1,300,000
60 LaSalle 0000 Xxxx Xxxxxx & Xxxxx Xxxxxx $19,000,000 Holdback $2,742,915
89 EHY Radisys Headquarters Building $13,000,000 Holdback $500,000
00 XXXX Xxxx Xxxxx Xxxxxxx $12,700,000 Earnout $2,100,000
99 GMACCM Victorian Square $12,185,617 Earnout $462,000
82 GMACCM Liberties Walk $11,988,388 Earnout $225,000
000 XxXxxxx Xxxxxx Xxxxxx Xxxxx Retail $7,250,000 Holdback $250,000
000 XxXxxxx Xxxxxxxxxxx Professional Plaza $4,440,000 Holdback $150,000
000 XXXX Xxxxxxx Xxxxxx XX Xxxxxx $3,817,924 Holdback $1,325,000
000 XXXXXX Xxxxxxxxxx Xxxxx $2,200,000 Earnout $200,000
Control # Release Provisions
------------------------------------------------------------------------------------------------------------------------------------
2 Released upon hitting certain leasing thresholds
60 1) Borrower has provided to Lender a lease, tenant estoppel certificate and subordination, non-subordination and and
attornment agreement executed by IndyMac Bank, F.S.B. 2) No event of default exists as of the date of Borrower's
request for dispursement or the actual date of such dispursment
89 Funds will be released to borrower provided no event of default exists and Borrower submits to Lender satisfactory
evidence that Radisys has renewed the Radisys Lease pursuant to the terms of the renewal option set forth in the
Radisys Lease.
87 The Borrower can release the earn out reserve of $2,100,000 subject to (i) no event of default, (ii) the cash flows
supporting a minimum 1.20x DSCR, and (iii) the LTV is not to exceed 80% of the loan amount.
99 Released upon Ashley Furniture taking occupancy and an additional 5,400 SF being leased (95% occupancy).
82 Released upon a DSCR for the immediately T6 of at least 1.20x; (ii) a minimum physical occupancy of at least 95%;
(iii) delivery of a current estoppel certificate from the tenant under the Restaurant Lease, and (iv) Borrower shall
have cured all of the Open Zoning Matters and delivered to Lender Clean and Conforming L&I Certificates.
166 1) Rite Aid of The Dollar Store shall have signed a new lease for a term of not less than five (5) years covering not
less than 22,900 square feet of space, at triple net base rent of not less than $207,000 per annum; or (ii) new
tenant shall have signed a new lease for a term of not less than five (5) years covering not less than 22,900 square
feet of space, at triple net base rent of not less than $207,000 per annum or (iii) the debt service coverage ratio,
as determinded by Beneficiary, shall be not less than 1.25 to 1.0 for two consecutive quarters and the property's
economic occupancy is not less than 95% for such quarters 2) Associated Grocers or the Dollar Store shall have signed
a new lease for a term of not less than five (5) years covering not less than 41,482 square feet of space, at a
triple net base rent of not less than $331,856 per annum; or (ii) a new tenant shall have signed a new lease for a
term of not less than five (5) years covering not less than 41,482 square feet of space, at triple net base rent of
not less than $331,856 per annum; or (iii) the debt service coverage ration, as determined by Beneficiary, shall be
not less than 1.25 to 1.0 for two consecutive quarters and the property's economic occupancy is not less than 95% for
such quarters.
244 1) Upon renewal of the Xxxxxx Xxxxxxx Lease, the percentage of the Rollover TILC Reserve derived by dividing the
"Gross Rent" for the Xxxxxx Xxxxxxx premises (i.e., the square footage occupied by Xxxxxx Xxxxxxx multiplied by the
rental rate per square foot), divided by $281,428 2) After April 30, 2006, the entire remaining Rollover TILC Reserve
shall be released upon achievemnt of stabilized base rent collections of at least $694,313 on an annualized basis,
under leases terms upon terms acceptable to Lender, with tenants acceptable to lender
264 Release $800,000 upon satisfaction of Tier 1 Disbursement Conditions after 3/31/07; Release remaining balance upon
satisfaction of Tier 2 Disbursement Conditions after 9/31/07
340 Release of a portion at 95% occupancy
Released
Control # Already?
------------------------------------------------------------------------------------------------------------------------------------
2 N
60 No
89 No
87 No
99 $264,000 - Ashley Furniture is in occupancy.
82
166 No
244 No
264 No
340 No
